Gilger v. Lee Const., Inc.

• Decision Date: 14 September 1990
• Docket Number: No. 64511,64511
• Citation: 798 P.2d 495,14 Kan.App.2d 679
• 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, Appellants, v. LEE CONSTRUCTION, INC.; Unger Heating and Air Conditioning; and Peoples Natural Gas Company, Appellees.
• Court: Kansas Court of Appeals

Page 495

798 P.2d 495

14 Kan.App.2d 679

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, Appellants, v. LEE CONSTRUCTION, INC.; Unger Heating and Air Conditioning and Peoples Natural Gas Company, Appellees.

No. 64511.

Court of Appeals of Kansas.

Sept. 14, 1990.

Review Granted Dec. 19, 1990.

Syllabus by the Court

1. The "fact of injury" referred to in K.S.A.1989 Supp. 60-513 is "reasonably ascertainable" when the plaintiff knows, or should be able to know, that a substantial injury has been suffered and that the cause of that injury was the negligence of the defendant.

2. The two-year statute of limitations set forth in K.S.A.1989 Supp. 60-513 begins to run when the "fact of injury" is reasonably ascertainable.

3. Summary judgment may be proper on the affirmative defense of the statute of limitations where there is no dispute or genuine issue as to the time the statute commenced to run. But, where the evidence is in dispute as to when a substantial injury first appears, or when it becomes reasonably ascertainable, the issue is for the determination of the trier of fact.

4. For purposes of triggering the running of the ten-year discovery period in K.S.A.1989 Supp. 60-513 and the eight-year period in K.S.A. 60-515, the "act giving rise to the cause of action" occurs when a plaintiff has been exposed to the negligent act of the defendant even though the "fact of substantial injury" may not be reasonably ascertainable at such time.

5. Under the facts of this case, the "act giving rise to the cause of action," which triggered the running of the ten-year discovery period in K.S.A.1989 Supp. 60-513 and the eight-year period in K.S.A. 60-515, occurred when the plaintiffs were first exposed to the defendants' negligent acts and is the date on which each plaintiff moved into the home containing the improperly vented furnace.

Larry E. Gregg, of Hamilton, Gregg, Barker & Johnson, Topeka, for appellants.

James T. McIntyre, of McMaster & McMaster, Wichita, for appellee Lee Const., Inc.

Lisa A. Beran, of Turner & Boisseau, Chtd., Great Bend, for appellee Unger Heating and Air Conditioning.

E. Edward Brown and John D. Osborn, of Calihan, Brown, Osborn, Burgardt & Wurst, Garden City, for appellee Peoples Natural Gas Co.

Before LEWIS, Justice, Presiding, RON ROGG, District Judge, assigned, and RICHARD W. WAHL, District Judge Retired, assigned.

LEWIS, Justice, Presiding.

The plaintiffs appeal from the granting of summary judgment on behalf of the defendants. The trial court held that the plaintiffs' claims against the defendants were barred by the statute of limitations and granted summary judgment in favor of all of the defendants as to the adult plaintiffs and summary judgment in favor of the defendants Lee and Unger as to the minor plaintiffs.

After a careful review of the record in this case, we have concluded that the trial court erred in granting summary judgment in favor of the defendants, and we reverse and remand.

The plaintiffs' action contended that the defendants were responsible in a variety of ways for the injuries sustained by plaintiffs. These injuries, they allege, were caused by their inhalation of carbon monoxide fumes from 1981 to 1987.

The genesis of this lawsuit occurred in the year of 1977. In that year, the defendant Lee Construction Inc., (Lee) as general contractor, built a home in Garden City. The defendant Unger Heating and Air Conditioning (Unger) installed a two-furnace heating system in the house. The home was completed on August 1, 1977, and that was the last date on which the defendant Lee had any contact whatsoever with the furnace in question. The furnace was improperly vented on its installation and this condition existed from August 1, 1977, until sometime in 1987. When the house was completed, it was first sold to a Mr. Cantrell, who began to occupy it on August 1, 1977. There is no indication in the record whether Mr. Cantrell suffered any ill effects during the period of time he lived in the house.

In 1981, the McGraws purchased the house and began to occupy it along with their minor children. Kathryn McGraw began to feel ill during her first year of occupying the home, and her illness continued at least until November 24, 1987. Iona Ruth Gilger, the mother of Kathryn McGraw, moved into the home to live with the McGraws sometime in 1984 and almost immediately began to feel ill. By October 1985, every member of the household was experiencing some degree of ill health.

Although all members of the McGraw family became ill during their occupancy of the home, Kathryn McGraw experienced the most dramatic symptoms. She consulted with a number of physicians in an effort to determine the cause of her symptoms, which included headaches, nausea, dizziness, numbness, accelerated heart rate, hallucinations, extreme menstrual pain, shortness of breath, itching, sleep disturbances, and loss of memory. She consulted various medical experts to determine the cause of her illness, including gynecologists, internal medicine specialists, heart specialists, and urologists. At various times, Kathryn McGraw suspected or was told she was suffering from multiple sclerosis, gall bladder poisoning, Alzheimer's disease, schizophrenia, and various "female" conditions. She consulted physicians in Garden City and Hutchinson, Kansas; LaJunta and Pueblo, Colorado; and Dallas, Texas. In addition to all of the disease processes Kathryn McGraw suspected for causing her problems, she suspected that the house in which she and her family were living might be contributing to her symptoms. Indeed, at various points in time, Kathryn McGraw suspected the source of her problems may have been the furnace located in the home.

In addition to consulting various physicians in an effort to determine the cause of her illness, Kathryn McGraw also contacted Unger and Peoples Natural Gas Company (Peoples) and requested that they check the furnace in the house. Peoples first checked the furnace in October 1982 and reported that it was operating properly. Again, in October 1985, both Peoples and Unger checked the furnace, at the request of the McGraws, and again reported that it was working properly. On one of the occasions, some malfunction was found with the furnace, but, at the same time, inspection revealed the presence of a bird's nest in the venting system, which was removed. At no time did Peoples or Unger indicate the furnace was not properly vented.

In the present action, which was filed on November 16, 1987, plaintiffs alleged that the defendants Lee and Unger were negligent in designing and installing the heating system, causing plaintiffs to be exposed to toxic gases. The petition further alleged that Peoples was negligent in failing to find or correct that problem.

The defendants filed a motion for summary judgment and, after due consideration, the trial court granted that motion. The court found the plaintiffs knew or should have reasonably ascertained prior to November 16, 1985, that they had suffered substantial injuries caused by the negligent acts of the defendants. It held that the statute of limitations had run on their causes of action prior to the filing of the petition on November 16, 1987. The trial court also held that the minor plaintiffs were barred from bringing causes of action against the defendants Lee and Unger. The court determined that the minors' causes of actions accrued on August 1, 1977, and became time barred on August 1, 1985. It also appears that the trial court may have concluded that, as to the adult plaintiffs, the ten-year "discovery" period established by K.S.A.1989 Supp. 60-513 began to run on August 1, 1977.

WHEN WAS THE "FACT OF INJURY" REASONABLY ASCERTAINABLE?

The first issue deals with the application of K.S.A.1989 Supp. 60-513(a) and (b) to the facts involved. The parties all agree that the plaintiffs' action was one sounding in tort for negligence and was governed by the two-year statute of limitations set forth in K.S.A.1989 Supp. 60-513. (The question of the cause of action of the minor plaintiffs is dealt with later in this opinion.) To resolve this issue, we must determine what knowledge is required for a "fact of injury" to become "reasonably ascertainable."

K.S.A.1989 Supp. 60-513(b) provides in pertinent part:

"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."

In essence, if the "fact of injury" is immediately ascertainable, the statute begins to run on that date. If the "fact of injury" is not reasonably ascertainable, then the statute of limitations does not begin to run until the fact of injury is or should be reasonably ascertainable.

The term "fact of injury" is a term of art and has not been interpreted literally by the courts of this state. There are a number of cases where the plaintiffs knew that something was wrong or knew that there was an injury, but did not know what caused that injury. In those cases, the Kansas courts have interpreted the term "fact of injury" to be that point in time when a plaintiff knew or should have known he had an injury caused by the negligence of the defendant.

In Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), the facts indicated that the plaintiff had been undergoing radiation treatment for Hodgkins' disease. She had...