Gooch v. Bethel A.M.E. Church

• Decision Date: 25 May 1990
• Docket Number: No. 63729,63729
• Parties: , 13 A.L.R.5th 974 James E. GOOCH, Sr., et al., Appellants, v. BETHEL A.M.E. CHURCH, et al., Appellees.
• Court: Kansas Supreme Court

Page 993

792 P.2d 993

246 Kan. 663, 13 A.L.R.5th 974

James E. GOOCH, Sr., et al., Appellants, v. BETHEL A.M.E. CHURCH, et al., Appellees.

No. 63729.

Supreme Court of Kansas.

May 25, 1990.

Syllabus by the Court

1. Rules relating to the granting of summary judgment in a negligence action are stated and applied.

2. In a negligence action based upon Restatement (Second) of Torts § 324A (1964), the threshold requirement is that the defendant undertook to render services to another.

3. For a defendant to meet the threshold requirement of Restatement (Second) of Torts § 324A (1964), the defendant must not only take affirmative action to render services to another, but the person to whom the services are directed must accept such services in lieu of, or in addition to, such person's obligation to perform the services.

Thomas L. Thurston, of Perry & Hamill, Overland Park, argued the cause, and Carston C. Johannsen, of the same firm, was with him on the briefs, for appellants.

Robert D. Beall, of Davis, Beall, McGuire & Thompson, Leavenworth, argued the cause and was on the brief, for appellee City of Leavenworth.

David W. Hauber, of Boddington & Brown, Chtd., Kansas City, argued the cause, and Kenneth E. Holm, of the same firm, was with him on the brief, for appellees Julius David Kaaz and Julius Kaaz Const. Co., Inc.

Glenn McCann, of Knipmeyer, McCann, Smith, Manz & Gotfredson, Kansas City Mo., argued the cause and was on the brief, for appellees GAB Business Services, Inc., and Gerald L. Albright.

Richard D. Anderson, of Entz, Anderson & Chanay, Topeka, was on the brief, for amicus curiae The Associated General Contractors of Kansas, Inc.

HOLMES, Justice:

The plaintiffs appeal from an order of the district court granting summary judgment to certain defendants in an action for the personal injury and wrongful death of Ira and Augustus Pettis. Mr. and Mrs. Pettis were killed when a church collapsed on their residence. Several of the defendants settled with the plaintiffs and the non-settling defendants were subsequently granted summary judgment. We affirm.

As this is an appeal from the granting of summary judgment, the facts will be stated in some detail.

On the evening of August 8, 1985, the Bethel A.M.E. Church (Bethel Church) at 411 Kiowa, Leavenworth, Kansas, partially collapsed on the residence of Ira and Augustus Pettis, killing both of them. The Pettis residence was located to the west of the church and the church parsonage was located to the east of the church. Apparently there was not much space between the two residences and the church building.

The plaintiffs include the heirs-at-law of Mr. and Mrs. Pettis, and James E. Gooch, as administrator of the estates of Ira Pettis and Augustus Pettis. The plaintiffs' petition asserted claims for trespass and negligent failure to warn against Church Mutual Insurance Company (CMIC), Dressler Engineers (Dressler), GAB Business Services, Inc. (GAB), and Gerald L. Albright. Plaintiffs also asserted a claim for trespass against the Bethel Church and a claim for negligent failure to warn against the City of Leavenworth (City). In their first amended petition, the plaintiffs added a claim of negligent failure to warn against Bethel Church and named African Methodist Episcopal Church, Inc.; M.D. Cooper, d/b/a M.D. Cooper & Associates Consulting Engineers (Cooper); Julius David Kaaz (Kaaz); and Julius Kaaz Construction Co., Inc. (Kaaz, Inc.), as additional defendants. Plaintiffs asserted claims of trespass and negligent failure to warn against each of the additional defendants. Apparently, the plaintiffs brought a separate action against W.F. Mothersbaugh, d/b/a W.F. Mothersbaugh & Son, Inc. (Mothersbaugh), and the two cases were consolidated in the district court.

The Bethel Church, CMIC, African Methodist Episcopal Church, Inc., Cooper, Dressler, and Mothersbaugh settled with the plaintiffs, and the actions against them were dismissed. Thus, plaintiffs' appeal concerns only defendants Kaaz, Kaaz, Inc., GAB and its employee Gerald L. Albright, and the City.

The voluminous record in this case, consisting of thirty-three volumes, includes one thousand four hundred forty-seven pages of pleadings, four partial transcripts of various court hearings, and twenty-six discovery depositions. The trial court, in ruling upon the motions for summary judgment filed by Kaaz, Kaaz, Inc., GAB, Albright, and the City, made one hundred eighty-five findings of fact. With this record before us, we turn to the events leading to the collapse of the church building and the filing of this action.

In June of 1985, Rev. Warren, pastor and president of the board of trustees of the Bethel Church, noticed that the east wall of the church was pulling away from the ceiling and informed Tom Bragg, Staff Johnson, and Landon Jackson, the other members of the church board of trustees. Bragg suggested contacting Kaaz, president of Kaaz, Inc., which had done some repair work at the church in prior years. Kaaz inspected the church and found problems with the ceiling truss system and a separation of the east wall from the ceiling. Kaaz then informed Bragg and Johnson that "they would have to get the services of a structural engineer and analyze the truss system to come up with a design for possible repair or replacement" and indicated the church building needed prompt attention.

On June 11, 1985, the Bethel Church filed a claim with CMIC, its property damage insurance carrier, claiming the church had been damaged by wind. On the same date, CMIC contacted the Overland Park offices of GAB "and requested GAB to investigate and adjust the property damage claim made by the Bethel Church on behalf of and for Church Mutual Insurance Company." GAB's business is investigating and adjusting insurance claims for insurance companies. Defendant Gerald L. Albright, one of GAB's branch managers, made arrangements with Rev. Warren to inspect the church property. On June 21, 1985, Albright met with Rev. Warren. Not knowing what caused the damage, Albright called Patricia Heller, a claims examiner with CMIC, and recommended that CMIC hire an engineer to look at the church. After Heller authorized Albright to obtain an engineer, Albright contacted Dressler Engineers, which agreed to inspect the church and prepare a report for CMIC.

Ron Haskey, an architectural engineer with Dressler, and Donald Dressler inspected the church on June 24, 1985. Kaaz was present to point out to Haskey what he had observed on his previous inspection of the church. Haskey determined the church was "unsafe for human occupancy" and indicated the City should be notified.

The City was notified and David Pennington, the Leavenworth Public Works Director and City Engineer, inspected the property on June 24 or 25. He informed one of the church members that he would have to post the church as unfit for habitation because of his concern that plaster from the ceiling would fall on someone. He also informed church officials that they needed to hire an engineer to determine the necessary repairs which would have to be completed before they could resume use and occupancy of the building. The property was posted as unfit for habitation and the front and east sides of the church were barricaded and roped off. The church officials were ordered "to repair or remove the structure within 30 days."

Dressler furnished its written report, dated June 28, 1985, to GAB for CMIC. The written report stated the church was "hazardous to human occupancy" and recommended "the immediate shoring of the east wall and deficient ceiling structure." Further, it stated: "All work should be conducted under the supervision of a registered professional engineer." Dressler's report and the deposition of Donald Dressler further indicate that there was an immediate danger that the church ceiling would collapse into the sanctuary. Albright, who received the report on July 1, 1985, prepared a report for CMIC which included a copy of the Dressler report. Albright's report stated that the building was dangerous and indicated that he had recommended to Rev. Warren that the area between the parsonage and the church building be roped off. By the time Albright prepared his report, the City had already barricaded and roped off the church.

On or about July 1, 1985, church trustee Tom Bragg contacted M.D. Cooper, a friend, and asked Cooper to look at the building and see what could be done. Cooper is a licensed civil engineer and he forthwith viewed the property. On either July 2 or July 3, Cooper informed Bragg that the east wall, being cracked, posed a hazard to the parsonage and that "repairs had to be implemented immediately." On July 3, 1985, Cooper prepared a proposal for designing plans for the shoring and repair of the church, including the provision of inspection services during repair and assistance in evaluating the bids the Bethel Church received. In his proposal, he stated that he would have "complete contract documents ready to bid six weeks after acceptance of this proposal (sooner if possible)." Rev. Warren and Bragg accepted the proposal on behalf of the Bethel Church.

On July 9, 1985, Cooper again inspected the church and drew plans and tentative bid specifications for the church's repair. On July 11, 1985, he submitted his plans to the Bethel Church which had set an August 28, 1985, deadline for bids. Cooper noted, "Failure is progressing. Time is of the essence." On July 25, 1985, Kaaz, who was interested in bidding on the repairs, met Cooper at the church property. They discovered that more plaster from the ceiling had fallen into the sanctuary, and Kaaz informed church trustees that he was no longer interested in bidding on the repairs because he did not feel his men would be safe working there.

On August 1, 1985, Bragg called Cooper and stated he wanted demolition to be an option in the plans. On August 2, 1985, William Mothersbaugh, a contractor...