Lewis v. Globe Const. Co., Inc., 51825
| Decision Date | 19 June 1981 |
| Docket Number | No. 51825,51825 |
| Citation | 630 P.2d 179,6 Kan.App.2d 478 |
| Parties | , 23 A.L.R.4th 663 Jerry LEWIS, d/b/a Boulevard Equipment Rental and Robert L. Livingston and Eugene Livingston, d/b/a Triangle Restaurant, Appellants and Cross-Appellees, v. GLOBE CONSTRUCTION CO., INC., Third-Party Plaintiff-Appellee and Cross-Appellant, v. O. D. TURNER, Secretary of Transportation, State of Kansas, Third-Party Defendant-Appellee, City of Wichita, Kansas, Third-Party Defendant-Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The temporary closing of a street or highway for repair falls within the police power of the state, not the exercise of the right of eminent domain; and so long as the repair is lawful, and is pursued with reasonable diligence, liability for damages to those whose access is temporarily restricted does not attach.
2. Absent a clearly manifested intention to the contrary, construction contracts between a contractor and a state or other public body for highway or street repair are not for the benefit of third persons, but are, on the one hand, for the benefit of the state or municipality in the performance of its duties to maintain highways or streets on behalf of the public, and on the other hand, for the benefit of the contractor by way of compensation to be paid.
James R. Roth, of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, for appellant and cross-appellee Jerry Lewis.
Christopher J. Redmond, of Redmond, Redmond & O'Brien, Wichita, for appellants and cross-appellees, Robert L. Livingston and Eugene Livingston.
James J. McGannon, of Regan & McGannon, Wichita, for third-party plaintiff- appellee and cross-appellant Globe Construction Co., Inc.
Thomas R. Powell, Wichita, for third-party defendant-appellee City of Wichita.
John W. Strahan, First Asst. Atty., Kansas Dept. of Transportation, for third-party defendant-appellee O. D. Turner, Secretary of Transportation, State of Kansas.
Before MILLER, Justice Presiding, REES, J., and STEVEN P. FLOOD, District Judge, Assigned.
MILLER, Justice Presiding:
The plaintiffs, Jerry Lewis, Robert L. Livingston and Eugene Livingston, appeal from various rulings and from the final judgment entered in the Sedgwick district court, following a jury trial in this action for breach of contract and for damages. The controlling issues are: (1) Was there such a taking as would justify an action by plaintiffs in the nature of inverse condemnation? and (2) Are plaintiffs third party beneficiaries under the terms of a street improvement contract? In order to consider these questions in the proper context, we must first state the facts in some detail.
Lewis was the proprietor of a business known as Boulevard Equipment Rental, and the Livingstons were the proprietors and operators of the Triangle Restaurant in Wichita, Kansas. Both businesses were operated on leased premises located on the east side of George Washington Boulevard, between Harry and Hillside Streets, in the Triangle Plaza Shopping Center. Direct access to both businesses was available from George Washington Boulevard.
The City of Wichita, in early 1974, determined that it was necessary and desirable to improve George Washington Boulevard by widening it from two to four lanes, with a mountable median, by rebuilding the drainage facilities, and by reconstructing the entrances to adjacent properties. For reasons not here important, the city entered into an agreement with the State Highway Commission (now the Department of Transportation) whereby the Commission agreed to serve as agent for the city during the course of the project. Plans were prepared, advertisements for bids were published, and on June 10, 1974, Globe Construction Co., Inc., the successful bidder, entered into a contract with the State Highway Commission to make the improvements. The contract includes the plans and specifications as an integral part. On page 4 of the plans appears the following construction sequence note:
The specifications include the then current State Highway Commission's Standard Specifications for State Road and Bridge Construction. Section 107.21 of those standard specifications includes a clause denying intent on the part of the contracting parties to create any third party beneficiary under the contract. That section reads:
R. W. Linn, Wichita City Engineer, notified the occupants of the properties on George Washington Boulevard between Harry and Hillside, on July 10, 1974, that paving work would begin on July 17, 1974, and that the boulevard would be closed between Hillside and Harry Streets. Globe began work on the project, and on July 17, put up barricades which closed the boulevard to through traffic between Hillside and Harry. According to the evidence, local traffic was maintained along the east side of George Washington Boulevard from three days to four weeks after the barricades were erected. There is no dispute, however, that the parking lots in front of plaintiffs' businesses were torn up by mid August, and entry into those lots by motor vehicles was no longer possible. The restaurant closed between a few days to two weeks after the barricades were put up on July 17. Access to plaintiff's business was possible off of Harry and Hillside streets, through the shopping center parking lot, by using a circuitous route behind some of the other stores in the shopping center; this route was not convenient. Plaintiff Lewis installed signs, indicating the route to his business; the Livingstons did not, but simply closed their restaurant. Both businesses suffered, and plaintiffs claim damages for loss of business due to the temporary closing of the street. George Washington Boulevard was closed to all traffic for about 60 days during the course of construction; local traffic was able to use the street after the middle of October, and the work was accepted as completed upon the issuance by the Highway Commission of a formal "Notice of Acceptance" to Globe on November 15, 1974.
Lewis and the Livingstons commenced this action on May 5, 1976, by filing suit against Globe Construction Co., claiming that they were third party beneficiaries of the construction contract, and more specifically under the note appearing on page no. 4 of the plans; they contended that Globe breached the contract by violating the plan note; and they sought damages. Globe answered and denied that plaintiffs were third party beneficiaries under the contract, denied that Globe breached the contract, denied liability, and denied the nature and extent of the damages claimed. Globe also filed a third party petition, naming the City of Wichita, and the Secretary of Transportation as successor to the State Highway Commission, as third party defendants; Globe sought a judgment over against the third party defendants in the event that plaintiffs recovered judgment against Globe. Plaintiffs then filed an amended petition, reasserting their claims for breach of contract as against Globe and adding claims against the City and the Secretary in the nature of inverse condemnation, for taking access to plaintiffs' businesses without compensation. The City and the Secretary filed separate answers, denying all claims against them. The trial court (1) directed verdicts against Globe on its third party claims against the City and the Secretary; (2) granted summary judgment in favor of the City and the Secretary on plaintiffs' inverse condemnation claims; and (3) permitted plaintiffs' action against Globe for damages for breach of contract to go to the jury. The jury returned a verdict in favor of the Livingstons for $0 and costs, and a verdict in favor of Lewis for $5,000 and costs. This appeal followed.
Was there such a taking as would justify an action by plaintiffs against the City and the Secretary in the nature of inverse condemnation? The taking complained of is the temporary deprivation of direct access from George Washington Boulevard to the parking lots in front of plaintiffs' businesses during construction. It is a common fact of life that street, road or highway repairs may result in loss of access to the abutting properties for from a few hours to a few months, during the repair or construction process. Our issue here is whether such a taking is compensable.
Inverse condemnation proceedings have been recognized by Kansas courts for many years. One of the early cases on the subject is Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 162-63, 8 P. 138 (1885). The railroad had built its line across plaintiff's land, to which the railroad held no title. Justice Valentine, speaking for a unanimous court, said:
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