Dunn v. USD 367

• Decision Date: 08 February 2002
• Docket Number: No. 84,987.,84,987.
• Citation: 40 P.3d 315,30 Kan. App.2d 215
• Parties: MICHAEL R. DUNN, Appellee, v. UNIFIED SCHOOL DISTRICT No. 367, MIAMI COUNTY, STATE OF KANSAS, Appellant, and TERRY RAY BALLOU, JR., Appellee, v. UNIFIED SCHOOL DISTRICT No. 367, OSAWATOMIE, MIAMI COUNTY, KANSAS, Appellant.
• Court: Kansas Court of Appeals

30 Kan. App.2d 215

40 P.3d 315

MICHAEL R. DUNN, Appellee, v. UNIFIED SCHOOL DISTRICT No. 367, MIAMI COUNTY, STATE OF KANSAS, Appellant, and TERRY RAY BALLOU, JR., Appellee, v. UNIFIED SCHOOL DISTRICT No. 367, OSAWATOMIE, MIAMI COUNTY, KANSAS, Appellant.

No. 84,987.

Court of Appeals of Kansas.

Opinion filed February 8, 2002.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellant.

Donald W. Vasos and David A. Hoffman, of Vasos Law Offices, of Shawnee Mission, for appellee Michael R. Dunn.

Lee H. Tetwiler, of Law Office of Lee H. Tetwiler, of Paola, for appellee Terry Ray Ballou, Jr.

Before MARQUARDT, P.J., ELLIOTT, J., and PADDOCK, S.J.

ELLIOTT, J.:

Following jury trial, defendant Unified School District (U.S.D.) No. 367 appeals the judgment and the district court's denial of its motion for judgment as a matter of law or new trial. We affirm.

The factual background is straightforward and undisputed; the procedural background is somewhat muddled but manageable. On December 15, 1995, plaintiffs Michael R. Dunn and Terry Ray Ballou, Jr., seniors at Osawatomie High School, finished lunch early and headed back to class. To get back to their classroom, Dunn and Ballou had to pass through double-glass hallway doors that were closed but were normally open and had been open when they went to lunch 20 minutes earlier. The plaintiffs noticed from a distance of 50 feet away the doors were closed but proceeded at a fast pace toward the doors. Both reached for the crossbar to open the door at the same time, but Ballou's hand slipped, striking the glass and breaking it. The glass in the door was plate glass, not safety glass, and as a result broke into knife-like pieces severely injuring both students.

Dunn and Ballou each filed a separate claim of negligence against U.S.D. No. 367 pursuant to the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. To summarize, Ballou alleged that U.S.D. No. 367 was negligent in (1) failing to discover the plate glass and replace it with safety glass, (2) failing to warn of the danger the plate glass posed; (3) failure to leave a door with plate glass open for passage and to warn that the door was closed; and (4) failure to supervise the students. Dunn alleged that U.S.D. No. 367 was negligent in (1) failing to use safety glass on an interior door; (2) failing to take reasonable steps to make the school premises safe for anticipated uses by their teenaged students; and (3) failing to remove the plate glass in the face of overwhelming evidence of its propensity to cause enhanced injury when broken.

The plaintiffs' claims were joined for discovery and trial. U.S.D. No. 367's first motion for summary judgment, which argued it was immune pursuant to K.S.A. 75-6104(m) and that the claim was barred by the statute of repose, was denied by the district court. Following further discovery, U.S.D. No. 367 renewed its motion for summary judgment. The district court orally granted the motion in part and denied it in part on the date of trial. Specifically, the district court orally granted the renewed motion with respect to the governmental immunity found in K.S.A. 75-6104(m) and, thus, dismissed any claims of negligence for failure to replace the plate glass but denied the motion with respect to the statute of repose argument.

No journal entry was prepared with respect to-the ruling on the renewed motion for summary judgment. Nonetheless, the case was ultimately tried on plaintiffs' allegations of breaches of duties other than failure to replace the plate glass with safety glass. We will, therefore, assume without deciding that U.S.D. No. 367 cannot be held liable for any design or planning defect that led to the installation of the plate glass.

The trial commenced, but a mistrial was declared during the examination of the plaintiffs' first witness.

The new trial commenced almost a year later. Following the reception of evidence and counsels' arguments, the trial court instructed the jury that the defendant had a duty to warn of the danger of the plate glass, duty to guard against breakage of the plate glass door, duty to inspect the school grounds for dangerous conditions, and a duty to properly supervise students and provide a safe learning environment. The jury found each plaintiff to be 10% at fault and U.S.D. No. 367 to be 90% at fault; it found Ballou's damages to be $123,013.52 and Dunn's damages to be $153,378.06.

U.S.D. No. 367 then moved for a judgment as a matter of law or a new trial, arguing (1) the statute of repose barred plaintiffs' claims; (2) defendant's liability is barred by K.S.A. 75-6104(m); and (3) a private person would not be liable under the facts of this case as required by K.S.A. 75-6103. The motion was denied. U.S.D. No. 367 appeals, bringing several issues. We take them in a slightly different order than presented.

Does the statute of repose bar plaintiffs' claims?

U.S.D. No. 367 argues that the statute of repose, K.S.A. 60-513(b), bars the plaintiffs' claims.

It is difficult to determine from its brief exactly from what ruling U.S.D. No. 367 appeals. The district court orally denied its motion for summary judgment based on a statute of repose argument and also denied its motion for judgment as a matter of law and, in the alternative, a new trial based on a statute of repose argument.

Nonetheless, a determination of whether the statute of repose applies is a question of law which we review de novo. See Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996).

The statute of repose provides:

"Except as provided in subsection (c), the 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.) K.S.A. 60-513(b).

Thus, 10 years from the occurrence of the act giving rise to the cause of action is the absolute limit for filing actions. Dobson v. Larkin Homes, Inc., 251 Kan. 50, 52-53, 832 P.2d 345 (1992).

U.S.D. No. 367 argues the act giving rise to the cause of action was the installation of the plate glass in the door which occurred in the late 1960s. This argument must be seen as contra to the argument U.S.D. No. 367 has urged throughout this case. U.S.D. No. 367 has consistently and forcefully argued during the entire pendency of this case that there can be no cause of action based on the planning and design of the building which led to the installation of the plate glass door. The district court agreed with this argument in orally granting U.S.D. No. 367 partial summary judgment, and we have assumed that proposition of law without deciding that such is the case. U.S.D. No. 367's actions in the late 1960s, designing and planning a door with plate glass, is not an act that can give rise to a cause of action because that act is not actionable pursuant to K.S.A. 75-6104(m). Thus, the date of the planning and designing of the plate glass doors is immaterial to a statute of repose argument.

Appellant's reliance on Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999), is misplaced. In Klose, the last act giving rise to plaintiff's cause of action occurred over 10 years after the statute of repose barred the action. In the present case, any tortious act or failure to act which gave rise to plaintiffs' cause of action occurred well within the statute of repose. We will discuss below whether there were, in fact, any tortious acts or a failure to act that supports plaintiffs' cause of action. U.S.D. No. 367 argues "[t]he statute of repose cannot be avoided by alleging a continuing failure to protect against an ancient premises hazard. The Klose appeal involved just such a contention, which was clearly rejected in the final paragraph of the Supreme Court's opinion."

A review of the Klose opinion and the appellant's brief filed in that case rejects U.S.D. No. 367's argument. The Supreme Court first held the statute of repose barred a claim against one of the defendants, Wood Valley Racquet Club. 267 Kan. at 168. The court then moved on to discuss plaintiff's claims against the other two defendants, holding those defendants owed plaintiff no duty of care. 267 Kan. at 169-74. The Supreme Court then noted in the last paragraph of the opinion that "Klose makes two final contentions.... The second is that Wood Valley had a duty to protect [plaintiff]. Neither is material in light of our conclusions that plaintiff s action against Wood Valley is barred by the statute of repose." 267 Kan. at 174.

Klose does not support the defendant's argument that the statute of repose cannot be avoided by alleging a continuing failure to protect against an ancient premises hazard. We can deduce from the fact that Klose's argument that Wood Valley owed him a duty of care was discussed well after the opinion's discussion of the statute of repose that Klose's argument had nothing to do with the statute of repose. In other words, it appears from the opinion that Klose did not argue Wood Valley breached a duty of care to protect him within the time period specified in the statute of repose, thus barring application of the statute of repose. Klose's argument with respect to Wood Valley's alleged duty of care had nothing to do with the applicability of the statute of repose. In the present case, both the district court and this court have been provided with Klose's brief on appeal, and it is clear that Klose's argument regarding Wood Valley's alleged breach of a duty to protect him had nothing to do with the application of the statute of repose. Klose simply...