Johnson v. Board of County Com'rs of Pratt County

• Court: Kansas Supreme Court
• Writing for the Court: SIX
• Citation: Johnson v. Board of County Com'rs of Pratt County, 913 P.2d 119, 259 Kan. 305 (Kan. 1996)
• Decision Date: 08 March 1996
• Docket Number: No. 71419,71419
• Parties: Oneita JOHNSON and Clara Johnson, Plaintiffs/Appellants/Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF PRATT COUNTY, et al., Defendants/Appellees/Cross-Appellants, and Kansas Department of Transportation, Third-Party Defendant/Appellee.

Page 119

913 P.2d 119

259 Kan. 305

Oneita JOHNSON and Clara Johnson Plaintiffs/Appellants/Cross-Appellees, v. The BOARD OF COUNTY COMMISSIONERS OF PRATT COUNTY, et al Defendants/Appellees/Cross-Appellants and Kansas Department of Transportation, Third-Party Defendant/Appellee.

No. 71419.

Supreme Court of Kansas.

March 8, 1996.

Syllabus by the Court

1. Structures cannot be built or maintained which will change the channel of a stream or project water against and upon the property of another in such a way as will result in substantial injury to either the owner upon the opposite side of the stream or to those above or below.

2. A watercourse requires the elements of a bed, banks, and a flow of water. The source of the water may be surface water alone or springs; but whatever the source, if the elements named are present, including that of permanence, a watercourse exists.

3. The duty of one building a bridge over a natural watercourse arises from an obligation to refrain from inflicting needless injury upon another.

4. Riparian rights may attach to a watercourse that has been artificially altered, under certain circumstances.

5. Under the facts of this case, which must be taken as true for purposes of summary judgment, genuine issues of material fact exist about whether: (a) the plaintiffs have riparian rights to the watercourse as altered by the old bridge, and (b) Pratt County and Mid-Continent Engineers breached their duty to the plaintiffs, downstream property owners, not to change the natural watercourse in a way that caused substantial injury to plaintiffs' properties.

6. The duty to maintain adequate bridges and the duty not to cause substantial injury to downstream property owners must be superimposed on one another.

7. One who undertakes, gratuitously or for consideration, to render services to another which the undertaker should recognize as necessary for the protection of a third person or the third person's property, is subject to liability to the third person for physical harm resulting from failure to exercise reasonable care to protect the undertaking if failure to exercise reasonable care increases the risk of such harm, or if the service was undertaken to perform a duty owed by the other to the third person, or the harm is suffered because of reliance of the other or the third person upon the undertaking.

8. K.S.A.1995 Supp. 75-6104(m), which provides an exception from liability to a governmental entity for the plan or design for the construction of or improvement to public property, requires prior approval by the governing body of the governmental entity or by some other body or employee exercising discretionary authority to give such approval. The approval must come from the governing body given the statutory authority for approval.

9. Whether an injury was temporary or permanent is the determinative factor in commencing the statute of limitations in damage actions from flooding allegedly caused by construction.

10. Under the facts of this case, the county's obtaining an after-the-fact permit under K.S.A. 82a-301 to construct a bridge did not establish that the new bridge was lawful for all purposes at the time it was built.

11. Under K.S.A. 12-105b, persons with tort claims are required to give notice to a municipality before filing suit; however, personswith contract claims are not.

12. The reasons given by a district court for a decision are immaterial so long as the ruling was correct for any reason.

13. A plaintiff allegedly suffering damages from a watercourse obstruction that is a nuisance has the option of seeking temporary (past) damages and abatement or permanent (past and future) damages without abatement.

14. A district court is given broad discretionary power under K.S.A. 60-215 to permit the amendment of pleadings. An appellate court will not find reversible error unless the amendment allowed or denied is so material it affects the substantial rights of the adverse party.

15. If the underlying facts or circumstances identify a proper subject of relief, the plaintiff ought to be afforded an opportunity to test the claim on the merits. In the absence of any apparent or declared reason, such as undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, or futility of the amendment, leave to amend should be freely given.

16. An agreement seeking to protect a party from liability for its own negligence is subject to strict construction and will not be enforced unless the protection from liability is expressed in clear and unequivocal terms.

Review of the judgment of the Court of Appeals in 21 Kan.App.2d 76, 897 P.2d 169 (1995). Appeal from Pratt District Court; Robert J. Schmisseur, Judge. Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part.

Keith Renner, of Barnett, Yockers, & Renner, P.A., Wakarusa, argued the cause and was on the briefs, for appellants/cross-appellees.

Allen G. Glendenning, of Watkins, Calcara, Rondeau & Friedeman, Chtd., Great Bend, argued the cause and was on the briefs, for appellees/cross-appellants the Board of Pratt County Commissioners, et al.

J. Stan Sexton, of Hampton, Royce, Engleman & Nelson, L.C., Salina, argued the cause, and John A. O'Leary, was with him on the briefs, for appellee/cross-appellant Mid-Continent Engineers.

Vicky S. Johnson, Staff Attorney, argued the cause, and Theresa A. Pasek, Staff Attorney, and Michael B. Rees, Chief Counsel, were on the briefs, for appellee Kansas Department of Transportation.

SIX, Justice:

This water law case is on appeal from summary judgment. Plaintiffs Oneita and Clara Johnson sued defendants Board of County Commissioners of Pratt County (the County) and Mid-Continent Engineers (MCE) for negligent design and construction of a new bridge over the Ninnescah River, upstream from their properties. The Johnsons seek recovery for erosion damage resulting from flooding of the Ninnescah in 1988 and 1991, which they assert was caused by the new bridge. The County filed a third-party claim for indemnification against the Kansas Department of Transportation (KDOT). KDOT was the County's agent during the design and construction of the bridge.

The district court granted summary judgment for the defendants and denied the Johnsons leave to amend their petition to add a nuisance claim. The county's third-party claim against KDOT was also dismissed.

The Court of Appeals reversed in part, affirmed in part, and remanded. Johnson v. Board of Pratt County Comm'rs, 21 Kan.App.2d 76, 897 P.2d 169 (1995). We granted the petitions for review of the County and MCE. Our jurisdiction is under K.S.A. 20-3018(b).

The issues we review under a summary judgment focus are whether: (1) the County and MCE owed a legal duty to the Johnsons, (2) the County is immune from liability under the Kansas Tort Claims Act (KTCA), K.S.A.1995 Supp. 75-6104(m), (3) any of the Johnsons' claims are time barred, (4) the failure to obtain a K.S.A. 82a-301 et seq. permit from the State Board of Agriculture, Division of Water Resources (the Division) before bridge construction is moot, (5) the Johnsons' notice of claim to the County failed to comply with K.S.A. 12-105b, thus barring a separate claim by Oneita based upon statements made and remedial work done by the County after the 1988 flood, (6) the district court erred in denying the Johnsons' motion to amend their petition to add a nuisance claim, and (7) the district court erred in dismissing the County's third-party claim against KDOT.

The County and MCE cross-appeal from the ruling that Clara's claim was not barred by the statute of limitations. The County cross-appeals from the judgment in favor of KDOT on the County's third-party claim.

Our review of the record and of the parties' contentions convinces us that summary judgment was not the proper procedural vehicle for resolving this case. See Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993) (rules relating to summary judgment reviewed). We affirm the Court of Appeals in part and reverse in part. The district court also is affirmed in part and reversed in part. We remand to the district court for further proceedings.

FACTS

The Court of Appeals stated the facts and procedural history. Additional facts are referenced in this opinion.

"The Johnsons own and live on adjoining pieces of real estate on the Ninnescah River in Pratt County, Kansas. The river runs from the west to the east, passing first through Clara's 13 acres and then through Oneita's 20 acres. Oneita's and Clara's homes are on the north side of the river. On this part of the river, the north bank is the steeper bank, and a flood plain lies to the south. A county road runs north-south along the western boundary of Clara's property and crosses the river at the bridge that is the subject of this action. [Clara's property begins at the east edge of the bridge and extends to Oneita's property.]

"The bridge was built in 1988, replacing a wooden bridge that had been in place for at least 62 years. The old bridge was approximately 57 feet long and was inadequate to accommodate water from a 25-year flood. In fact, flood waters were frequently diverted to the flood plain to the south. The flood water would cover the south approach road and then flow back into the river channel. Although the river flooded every year, it had not caused any substantial erosion of the north bank along the Johnsons' property.

"In the mid-1980s, the Board of County Commissioners of Pratt County (County) decided to replace the old bridge and hired Mid-Continent Engineers (MCE) to design the new bridge and oversee its construction. Acting as the County's agent to obtain federal highway...