Gilger v. Lee Const., Inc.

• Decision Date: 02 October 1991
• Docket Number: No. 64511,64511
• Parties: Iona Ruth GILGER, Dennis J. McGraw and Kathryn Ann McGraw, as individuals, and Dennis J. and Kathryn Ann McGraw, as guardians and natural parents of Jarrett Joe McGraw, Marrilee Ann McGraw, and Brett D. McGraw, minors, Appellants, v. LEE CONSTRUCTION, INC., Unger Heating and Air Conditioning, and Peoples Natural Gas Company, Appellees.
• Court: Kansas Supreme Court

Page 390

820 P.2d 390

249 Kan. 307

Iona Ruth GILGER, Dennis J. McGraw and Kathryn Ann McGraw as individuals, and Dennis J. and Kathryn Ann McGraw, as guardians and natural parents of Jarrett Joe McGraw Marrilee Ann McGraw, and Brett D. McGraw, minors, Appellants, v. LEE CONSTRUCTION, INC., Unger Heating and Air Conditioning and Peoples Natural Gas Company, Appellees.

No. 64511.

Supreme Court of Kansas.

Oct. 2, 1991.

Syllabus by the Court

1. Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. The trial 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. On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. Where the affirmative defense of the statute of limitations is asserted, summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. But in a tort action where the evidence is in dispute as to when substantial injury first appears or becomes reasonably ascertainable, the issue is for determination by the trier of fact.

3. Under K.S.A. 60-513(b), the two-year statute of limitations for a tort action commences on the date of substantial injury. A cause of action in tort does not accrue until there is substantial injury resulting from a breach of duty imposed by law.

4. The ten-year statute of limitations provided in K.S.A. 60-513(b) applies only when an injury is sustained but is not reasonably ascertainable until a later date. The ten-year limitation is merely a limit on the extension of the two-year limitation when an injury is not immediately ascertainable.

5. Under K.S.A. 60-513(b), a wrongful act alone does not give rise to a cause of action or start the running of the statute of limitations. Rather, when an act occurs which causes substantial injury at a date later than the wrongful act, both the two-year and ten-year statutes are triggered upon ascertainment of the substantial injury. If the injury is known but the facts of such injury are not reasonably ascertainable until later, K.S.A. 60-513(b) bars an action thereon unless the facts of injury are ascertained and action commenced within ten years of the substantial injury.

6. Tomlinson v. Celotex Corp., 244 Kan. 474, 770 P.2d 825 (1989), is hereby overruled.

7. Every case involving actionable negligence contains three essential elements: (1) There must be a duty running from the defendant to the plaintiff; (2) the defendant must have breached the duty; and (3) the breach of duty by the defendant must have injured and damaged the plaintiff.

8. Injury and damages alone are not sufficient for the accrual of a negligence action. Establishing when the fact of injury was reasonably ascertainable is an essential element in determining when a tort action accrued.

9. Controverted evidence as to when an injury was reasonably ascertainable and when the cause of the injury was determined is a material question of fact which should be resolved by the trier of fact.

Larry E. Gregg of Hamilton, Gregg, Barker & Johnson, Topeka, argued the cause and was on the brief for appellants.

James T. McIntyre of McMaster and McMaster, Wichita, argued the cause and was on the brief for appellee Lee Construction, Inc.

Harry Bleeker of Turner & Boisseau, Chartered, argued the cause, and Lisa A. Beran, of the same firm, Great Bend, was on the brief for appellee Unger Heating and Air Conditioning.

E. Edward Brown of Calihan, Brown, Osborn, Burgardt & Wurst, Garden City, argued the cause and John D. Osborn, of the same firm, was on the brief for appellee Peoples Natural Gas Company.

Steve R. Fabert of Fisher, Patterson, Sayler & Smith, Topeka, was on the brief for amicus curiae Kansas Ass'n of Defense Counsel.

HERD, Justice:

This is a tort action for injuries sustained by the McGraw family as a result of long-term exposure to carbon monoxide. They contend the heating system in their house was negligently designed and installed by Lee Construction, Inc., (Lee) and Unger Heating and Air Conditioning (Unger). Appellants further allege Peoples Natural Gas Company (Peoples) negligently failed to find or correct the problem.

The district court found the action was barred by the statute of limitations and granted summary judgment in favor of Unger, Lee, and Peoples. Appellants appealed and the Court of Appeals reversed. Gilger v. Lee Constr., Inc., 14 Kan.App.2d 679, 798 P.2d 495 (1990). We granted the appellees' petition for review.

The following facts gave rise to the controversy: Lee was the general contractor for a residence in Sagebrush Estates, Garden City, Kansas, and Unger, a subcontractor, installed a two-furnace heating system in the residence. All work was completed by August 1, 1977.

The McGraws moved into the residence in 1981. Within the first year of moving into their new home, Kathryn McGraw began to experience health problems. In the next several years she consulted numerous physicians for headaches, nausea, numbness in her arms and legs, digestive problems, menstrual pain, rapid heart rate, joint pain, and hallucinations. Kathryn suspected gas in the house was the source of her health problems, but also attributed the health problems to various other medical conditions. In January 1983, Kathryn's mother, Iona R. Gilger, moved into the McGraws' residence. By October, 1985, all family members living in the house suffered health problems.

In 1982, Peoples sent a serviceman to the McGraw residence to check a purported gas leak in the furnace; however, no leak was discovered. Sometime in 1984 or 1985 the Finney County Sanitarian and Finney County Building Inspector visited the McGraw residence in response to complaints by Kathryn about the heating system. Appellants were advised that fresh-air ventilation was needed in the furnace room. On February 15, 1985, Unger inspected the McGraws' furnace and flue and discovered a bird's nest which caused the flue to backdraft. Correction of these defects did not stop the health problems.

In mid-October 1985, Howard Sheets began carpentry work on the McGraw residence. Mr. Sheets became ill and suggested to Kathryn that she have the furnace checked for a gas leak. On October 18, 1985, Peoples inspected the McGraw residence for carbon monoxide and natural gas. Peoples found the furnace operated properly. On October 23, 1985, Unger once again checked the McGraws' furnace to assure it was working properly. At no time were the appellants warned by Unger or Peoples about improper venting of the furnace.

The appellants contend they did not discover their health problems were caused by the improperly vented furnace until November 24, 1985, when Calvin Fowler inspected the furnace. Appellants filed a negligence suit against Unger, Lee, and Peoples on November 16, 1987.

Upon ruling on appellees' motions for summary judgment, the district court concluded all alleged negligent acts occurred prior to November 14, 1985, and that the adult appellants knew or could have reasonably ascertained prior to November 14, 1985, that their injuries were caused by appellees' negligent acts. Thus, the court found appellants' action was time barred by K.S.A. 60-513 and granted summary judgment. As for the minor appellants, the district court determined their negligence action against Lee and Unger was barred by an eight-year statute of limitations, K.S.A. 60-515, because the negligent act giving rise to the cause of action occurred no later than August 1, 1977, when the house was fully constructed. The minor appellants' claim against Peoples, however, was found within the statute of limitations because Peoples' last act of negligence occurred on or prior to October 18, 1985, when it inspected the McGraws' furnace.

Upon appeal, the Court of Appeals ruled that summary judgment was improper because genuine issues of fact remained as to when the appellants ascertained their injuries were the result of appellees' negligence. 14 Kan.App.2d at 687-88, 798 P.2d 495. The Court of Appeals also determined that the act giving rise to appellants' cause of action did not occur in 1977 as the district court found, but in 1981, when appellants were first exposed to appellees' negligence. 14 Kan.App.2d at 691, 798 P.2d 495.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. The trial 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. On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990); Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).

Where the affirmative defense of the statute of limitations is asserted, summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. But in a tort action where the evidence is in dispute as to when substantial injury first appears or becomes reasonably ascertainable, the issue is for...