Heinsohn v. Motley

• Decision Date: 30 September 1988
• Docket Number: No. 61567,61567
• Citation: 761 P.2d 796,13 Kan.App.2d 66
• Parties: Charles HEINSOHN, Appellant, v. Dellyn H. MOTLEY, Appellee.
• Court: Kansas Court of Appeals

Page 796

761 P.2d 796

13 Kan.App.2d 66

Charles HEINSOHN, Appellant, v. Dellyn H. MOTLEY, Appellee.

No. 61567.

Court of Appeals of Kansas.

Sept. 30, 1988.

Syllabus by the Court

1. The plain language of K.S.A. 1987 Supp. 60-256(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.

2. Under the doctrine of caveat emptor, a vendor of land is not subject to liability for physical harm caused to a vendee after the vendee has taken possession where the dangerous condition, whether natural or artificial, existed at the time that the vendee took possession. The vendee is required to inspect the premises, and the vendor is not responsible for a defective condition existing at the time of transfer.

Seth G. Valerius and William Hergenreter of Shaw, Hergenreter & Quarnstrom, Topeka, for appellant.

C. Steven Rarrick and Thomas E. Wright of Davis, Wright, Unrein, Hummer & McCallister, Topeka, for appellee.

Before RULON, P.J., and SIX and ELLIOTT, JJ.

RULON, Judge:

Charles Heinsohn, plaintiff, appeals the trial court's grant of summary judgment in favor of Dellyn H. Motley. We find no reversible error and affirm.

The facts of this case are as follows:

Motley owned a cabin located west of Topeka. Shortly after purchasing the cabin in 1969, Motley installed a wood heating stove with the help of a friend. Later, between 1975 and 1977, Motley purchased a used propane heating stove which was also installed in the cabin by a friend. Motley was present during the installation of the propane stove, but did not pay too much attention to the installation procedure. Motley never inspected the exterior ventilation system of the propane stove; but he did light the stove once and let it heat briefly.

In March 1985, Motley sold the cabin to Heinsohn. Among other questions, Heinsohn asked Motley if the propane stove worked; Motley replied that the stove had been used only once and that Heinsohn "would have to check it out." Heinsohn was afforded an opportunity to thoroughly inspect the cabin, although he did not have anyone inspect the cabin with him.

In September 1985, Heinsohn decided to spend the night at the cabin. He lit the propane stove and went to bed. The next morning, he was found unconscious by his girlfriend and was taken to the hospital by ambulance. After he woke up in the hospital, he was told that there had been a tin can over the vent pipe. Heinsohn did not know if Motley put the can over the vent pipe, but speculated that he probably did if he installed the stove and owned the cabin for 15 years.

Heinsohn suffered carbon monoxide poisoning and was hospitalized for three days. He further suffered multiple seizures and was given Dilantin to control the seizure activity. He was unable to work for six months and continued to suffer pain in one elbow due to blood clotting and numbness caused by lack of circulation and lack of oxygen in the blood supply.

After Heinsohn's hospitalization, a mechanical inspection was conducted and numerous deficiencies were identified regarding the installation of the propane stove. The most serious deficiencies included improper venting and improper air combustion requirements due to the size of the stove.

Heinsohn filed his negligence action in March 1986, and in April 1987, Motley filed a motion for summary judgment, which was opposed by Heinsohn. Both parties fully complied with all procedural requirements which govern summary judgment practice. See K.S.A.1987 Supp. 60-256; Rule 141 (1987 Kan.Ct.R.Annot. 79).

This court, in Crooks v. Greene, 12 Kan.App.2d 62, 64-65, 736 P.2d 78 (1987), clearly stated the law controlling the granting of a motion for summary judgment:

"A moving party is entitled to summary judgment 'if 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 a judgment as a matter of law.' K.S.A. 60-256(c). The burden is on the moving party to demonstrate that no genuine issue of material fact exists when the record is viewed in a light most favorable to the nonmoving party. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 341-42, 624 P.2d 971 (1981). Contrary to plaintiffs' assertion, this does not mean the defendants, the moving parties here, had to prove in their summary judgment motions that they were not negligent. Defendants were entitled to prevail if they could establish that there was an absence of evidence to support plaintiffs' case. As stated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 [322-24], 91 L.Ed.2d 265, 273-74, 106 S.Ct. 2548 [2552-53] (1986), when analyzing the import of Rule 56(a), (b), and (c), Fed.R.Civ.Proc., which mirror the language of K.S.A. 60-256(a), (b), and (c):

" 'In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof....

" '[W]e find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to "the affidavits, if any" (emphasis added), suggests the absence of such a requirement. And if there were any doubt about the meaning of Rule 56(c) in this regard, such doubt is clearly removed by Rules 56(a) and (b), which provide that claimants and defendants, respectively, may move for summary judgment "with or without supporting affidavits" (emphasis added). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a...