Elstun v. Spangles, Inc., No. 98,179.

• Decision Date: 03 October 2008
• Docket Number: No. 98,179.
• Citation: 193 P.3d 478
• Parties: Violetta ELSTUN, Appellant, v. SPANGLES, INC., Appellee.
• Court: Kansas Court of Appeals

193 P.3d 478

Violetta ELSTUN, Appellant, v. SPANGLES, INC., Appellee.

No. 98,179.

Court of Appeals of Kansas.

October 3, 2008.

Mitchell W. Rice and Matthew L. Bretz, of Bretz Law Offices, of Hutchinson, for appellant.

Gerald L. Green, of Gilliland & Hayes, P.A., of Hutchinson, for appellee.

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

HILL, J.

In Kansas, slight defects in sidewalks do not present an actionable negligence claim against cities or those who maintain them. This doctrine is known as the slight-defect rule. The district court applied that rule to this case where Violetta Elstun fell and broke her hip in a Spangles parking lot because of a 2-inch rounded depression she did not see when she tried to get into her car. We hold the district court's application of the slight-defect rule to a parking lot was improper. We reverse and remand.

The district court decided this case by granting summary judgment.

On February 24, 2004, Violetta Elstun first went to church and then to eat at a Spangles restaurant on Fourth Street in Hutchinson. It was misting as she was leaving the restaurant. She walked through the parking lot to her car, opened her car door, and stepped back into a hole. Ms. Elstun fell and suffered a broken hip. She later testified the hole was hidden from view because the pavement was dark and wet and the hole was filled with water. Ms. Elstun also testified that she was not looking at the ground or the depression in the parking lot before she fell. Estimating from the photographs attached to Spangles' motion for summary judgment, the sagging depression that Elstun stepped in was about 2 inches deep.

Spangles moved for summary judgment, arguing the slight-defect rule barred Ms. Elstun's claim. The corporation attached two photos to support its claim the depression in the parking lot was only 2 inches deep. Ms. Elstun disputed Spangles' claim about the depth of the depression. She argued "the photos attached by Defendant are insufficient to establish the depth of the depression and are not in conformity with Sup.Ct. R. 141(a)." She asserted, as an added uncontroverted fact, the hole was hidden from view by the dark, wet pavement. She also argued the slight-defect rule did not apply to defects in a retail business parking lot and that, if the rule was applicable, there were circumstances which precluded application of the rule here. The district court held the slight-defect rule barred Ms. Elstun's claim and granted Spangles' motion for summary judgment.

In this appeal, Elstun claims the district court erred in granting summary judgment to Spangles. Initially, she argues the court erred in resolving a negligence claim on a motion for summary judgment. Second, Ms. Elstun maintains the court should not have relied on photos attached to Spangles' motion for summary judgment. Third, Ms. Elstun contends the slight-defect rule does not apply to a defect in a retail business parking lot. Fourth, she thinks the court erred when it decided the defect was slight. Finally, in Elstun's view, the fact that it was raining, the pavement was wet and dark, and the hole was filled with water precluded application of the rule. She thinks the court erred when it failed to consider all the circumstances and granted summary judgment. On the other hand, Spangles contends the district court correctly expanded the slight-defect rule and that it was entitled to summary judgment as a matter of law.

We set out our standard of review.

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, along with any affidavits, show there is no genuine dispute about any material fact and the party seeking summary judgment is entitled to judgment as a matter of law. A district court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party opposing summary judgment. Then, to avoid summary judgment, the party opposing summary judgment must come forward with evidence to show a dispute about a material fact and the facts subject to the dispute must be material to the decisive issues in the case. Where reasonable minds could differ about any conclusions drawn from the evidence, summary judgment must be denied. An appellate court applies the same standard as the district court when reviewing a motion for summary judgment. See Robbins v. City of Wichita, 285 Kan. 455, 459-60, 172 P.3d 1187 (2007).

We look briefly at the first two claims.

Ms. Elstun first asserts that a negligence claim involves questions of fact which should not be resolved by summary judgment. This is accurate to a certain extent. Even though district courts are warned against granting summary judgments in negligence cases, a litigant moving for summary judgment is entitled to prevail if the moving party proves there is no evidence of negligence. See Seitz v. Lawrence Bank, 36 Kan. App.2d 283, 288, 138 P.3d 388, rev. denied 282 Kan. 791 (2006). Appellate courts have approved summary judgment to defendants if the plaintiffs fail to show the defendants breached any duty to the plaintiffs. In Robbins, 285 Kan. at 470, 172 P.3d 1187, the court said summary judgment is proper where plaintiff fails to show a prima facie case of breach. We will not hold that summary judgment will never be granted in negligence cases.

Second, Ms. Elstun argues the district court erred in relying on photos attached to Spangles' motion for summary judgment on the depth of the hole. Ms. Elstun claims the photos had no evidentiary basis, were not enough to prove the depth of the hole, and were not in conformity with Supreme Court Rule 141(a) (2007 Kan. Ct. R. Annot. 218). Spangles contends the photos were part of the record, that Elstun failed to provide the district court with any contrary evidence, and the district court did not abuse its discretion by considering the photos.

We point out Supreme Court Rule 141(a) explains what a memorandum in support of a summary judgment motion must contain. It must have "the uncontroverted contentions of fact relied upon by [the moving party] (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record)." (Emphasis added.) (2007 Kan. Ct. R. Annot. 218). Spangles, in its contentions of fact, specifically referred to the two attached photos as exhibits of the depression's depth.

Ms. Elstun does not say how the photos fail to conform with Supreme Court Rule 141(a). She cannot claim surprise. Spangles asserted the depression was 2 inches deep and referred to two photos attached to the motion. According to Spangles, it disclosed these photos during discovery. The photos were clearly contained in the court file and included in the record when Spangles filed its motion with the district court.

In contrast, Ms. Elstun has failed to come forward with any evidence disputing Spangles' claim about the depth of the depression. See Supreme Court Rule 141(b) (2007 Kan. Ct. R. Annot. 218) (if opposing party contends the moving party's factual claim is controverted, the opposing party must provide a concise summary of conflicting testimony or evidence); Robbins, 285 Kan. at 460, 172 P.3d 1187 (the adverse party must come forward with evidence to show a dispute about a material fact). In her opposing memorandum, Elstun merely challenged the evidentiary basis for the photos but failed to provide contrary evidence to dispute the depth of the hole. We believe the district court properly relied on the photos and found the depression in the Spangles parking lot was 2 inches deep. We find no abuse of discretion by the district court on this point.

We examine history of the slight-defect rule.

The district court applied the slight-defect rule to the facts of this case and granted summary judgment to Spangles. Spangles asks us to do the same. No prior Kansas case has applied the rule to a retail business parking lot. We decline to do so.

It has long been the rule in Kansas that slight defects in sidewalks do not present an actionable negligence claim against cities, individuals, or private corporations. The reason underlying this slight-defect rule is to relieve those responsible for construction and maintenance of sidewalks of the financially prohibitive burden of maintaining them in a perfectly level condition, particularly because of Kansas weather.

In 1935, the Kansas Supreme Court created the slight-defect rule in Ford v. City of Kinsley, 141 Kan. 877, 881, 44 P.2d 255 (1935). The court ruled that slight and inconsiderable defects in city sidewalks do not present an actionable negligence claim against a city. The ruling was later extended in Sepulveda v. Duckwall-Alco Stores, Inc., 238 Kan. 35, 36, 708 P.2d 171 (1985), to actions against individuals and private corporations. This rule was reaffirmed in Lyon v. Hardee's Food Systems, Inc., 250 Kan. 43, 52, 824 P.2d 198 (1992). But in Lyon, the court declined to apply the rule where defendant negligently created and maintained a defect in the sidewalk. This court has also applied to slight-defect rule to a privately maintained...