Moore v. Associated Material and Supply Co., Inc.

• Decision Date: 07 November 1997
• Docket Number: No. 76948,76948
• Citation: 948 P.2d 652,263 Kan. 226
• Parties: Mark MOORE, Joanne Moore, Richard Croney, Geneva Croney, Elizabeth Dicken, Cindy Perry, Fay Fisher, Lloyd A. Mourning, Nancy Mourning, Robert Jones, Lucille Jones, Rick Langerot, Irene Langerot, Larry Watson, Diana Watson, Donald Mundt, Deborah Schiell, James Dustin, James Rhodes, Theresa Rhodes, Melody A. Street, Virginia Crile, and St. Joseph Medical Center, Appellants, v. ASSOCIATED MATERIAL AND SUPPLY COMPANY, INC., Appellee.
• Court: Kansas Supreme Court

Page 652

948 P.2d 652

263 Kan. 226

Mark MOORE, Joanne Moore, Richard Croney, Geneva Croney,

Elizabeth Dicken, Cindy Perry, Fay Fisher, Lloyd A.

Mourning, Nancy Mourning, Robert Jones, Lucille Jones, Rick

Langerot, Irene Langerot, Larry Watson, Diana Watson, Donald

Mundt, Deborah Schiell, James Dustin, James Rhodes, Theresa

Rhodes, Melody A. Street, Virginia Crile, and St. Joseph

Medical Center, Appellants, v. ASSOCIATED MATERIAL AND SUPPLY COMPANY, INC., Appellee.

No. 76948.

Supreme Court of Kansas.

Nov. 7, 1997.

Syllabus by the Court

1. Standards of review for granting motions for summary judgment are stated and applied.

2. Negligence is a breach of a duty of care. To recover in an action for negligence, causation and damages must also be proven. However, it is incorrect to state that a finding of negligence includes causation, as a person may be negligent but fail to cause any damages, in which case the negligence is not actionable.

3. The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions are not necessary.

4. The evidentiary issue of whether the trial court abused its discretion in refusing to admit expert testimony should be distinguished from the issue of whether a defendant is entitled to summary judgment if a plaintiff fails to provide adequate expert testimony, where considerable direct evidence bears upon the precise issue to be proven.

5. A party is not necessarily required to resort to expert opinion testimony merely because the case involves matters of science, special skill, special learning, knowledge, or experience which may be difficult for jurors to comprehend.

6. Where a nonexpert witness is particularly acquainted with the matter to which the cause of an occurrence or condition relates, and that matter cannot be fully reproduced and made intelligible to the jury except by the expression of an opinion interpreting the impression made on the mind of the witness, then such an opinion is admissible, provided the witness knows the facts personally and first testifies to the facts on which the opinion is based.

7. Where the causal nature of an action is self-evident, an expert is not required in order to submit a matter for decision to a jury, regardless of the existence of other complicating factors.

8. A lay witness may testify as to conditions which the witness observed on the land itself, may testify as to the path water takes in its flow, and may testify to other facts relating to flooding when such facts are visible to the witness. Observations of lay witnesses can provide sufficient evidence of causation in a flood damage case to allow the issue to go before the jury.

9. Witnesses who have long been familiar with the flooding patterns of an area are competent to form an opinion as to the cause of flooding.

10. K.S.A. 60-456(a) permits opinion testimony by witnesses not testifying as experts if such an opinion is incidental to the witness' actual knowledge of the facts and circumstances of the case.

11. Pursuant to K.S.A. 60-3703, a trial court may allow the filing of an amended pleading to add a claim for punitive damages if, from the supporting and opposing affidavits presented, the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

12. In considering whether there is a "probability" that the plaintiff will prevail, probability means that it is more likely than not that the plaintiff will prevail on a claim of punitive damages upon trial of the case. Because the standard of proof required in order for plaintiff to prevail on a punitive damages claim at trial is clear and convincing evidence, the trial court in exercising its statutory duties under K.S.A. 60-3703 must give consideration to this standard in determining the probability of recovery.

13. When deciding whether to allow a claim for punitive damages, the trial court is to consider the evidence presented in the opposing affidavits as well as other evidence in a light most favorable to the party moving for the amendment, and if the evidence is of sufficient caliber and quality to allow a rational factfinder to find that the defendant acted towards the plaintiff with willful or wanton conduct, fraud, or malice, the trial court shall allow the amendment. This is another way of saying that amendment will be allowed when plaintiff has established that there is a probability that plaintiff will prevail on a punitive damages claim.

14. The decision of whether to permit a plaintiff to amend a petition to claim punitive damages is discretionary in that K.S.A. 60-3703 provides that the court may allow the filing of an amended petition claiming punitive damages. Thus, our standard of review is one of abuse of discretion.

Corlin J. Pratt, of Grace, Unruh & Pratt, Wichita, argued the cause, and Brian G. Grace and Terry L. Unruh, of the same firm, were on the briefs, for appellants.

David J. Morgan, of Hershberger, Patterson, Jones, & Roth, L.C., Wichita, argued the cause and was on the brief, for appellee.

LARSON, Justice:

This is an appeal by a group of homeowners (Homeowners) who have sued the operator of a sand pit adjacent to their property, Associated Material & Supply Company, Inc., (Associated), for damages alleged to have been caused during floods in May and July 1993. Homeowners claimed a pile of overburden constructed by Associated diverted floodwater onto their property.

The trial court granted summary judgment to Associated on the ground Homeowners had failed to obtain and identify an expert witness to establish causation.

Factual statement

The result we reach on the principal issues to this appeal is primarily guided by our standards of review. As such, our factual statement is based on the various affidavits, depositions, documents, and exhibits in the record and the uncontroverted facts that have evidentiary support.

Homeowners own property in the Holiday Lakes and Holiday Acres subdivisions in Mulvane, Kansas. Many of the homes were built prior to 1975. Their properties lie directly west of the Arkansas River, which flows from north to south past their homes. Their properties lie in the flood plain of the river, and many of the houses have been raised to avoid high water. Old Highway 53 runs east and west just north of their properties, and an access road, Estafan Road, runs north and south along the west side of Homeowners' neighborhood. A wooded area lies to the west of Estafan Road.

Associated purchased farmland to the immediate west of Homeowners in 1980 with the intention of establishing a sand pit operation. In April 1983, Associated obtained a special use permit for the operation from the Mulvane Planning Commission and the Mulvane City Council, but never obtained any levee permit from the Kansas Board of Agriculture, Division of Water Resources (DWR) until subsequent to the July 1993 flood. Homeowners, through counsel, expressed concerns to Associated in 1984 when overburden from the sand pit operations began piling up along the east side of Associated property. Homeowners' attorney, Robert Kaplin, warned Associated of potential flooding problems, but discussions resulted in no positive action.

From 1984 through 1993, Associated piled dirt along the eastern edge of its property immediately west of the wooded area west of Homeowners' property, forming an obstruction to the flow of water. The overburden pile ran from near the northern boundary of Associated's property to the southern end of the sand pit lake. By 1993, the pile formed a levee 5 to 10 feet in height, nearly 100 feet wide in places, and extending approximately one quarter of a mile.

Homeowners had experienced flooding in 1944, 1951, 1957, 1961, 1962, 1965, 1973, 1974, 1979, 1981, 1987, 1989, 1993, and 1995. The 1993 floods in May and July were the highest of record, although the 1979 flood during the first part of November was nearly as high. Gauge records on the Arkansas River at the Derby station (about 7 miles north of Homeowners' properties) showed a discharge of 55,200 cubic feet per second, 94% of the FEMA 100-year frequency flood in 1979. Records of the May and July 1993 floods reported the discharge at 95% and 98%. The U.S. Corps of Engineers, using a base discharge of 76,000 cubic feet per second, reported yields of 68%, 69%, and 71% of a 100-year flood for the flooding of 1979, May 1993, and July 1993, respectively.

In 1979, Homeowners sustained no flood damages; however, in 1993 major damage was sustained. Homeowners assert that the only topographical change during the intervening years was the addition of the levee. Associated pointed out that landowners to the north and east had built a dike along the eastern edge of their properties, but the effect of this structure is unclear.

During the May 1993 flood, water began flowing from the north over Highway 53 north of Homeowners' properties and through the northeast corner of Associated's property. On May 9, 1993, Associated employees piled dirt into an entrance road at that corner to slow down the water, prevent the road from washing out, and prevent water from entering the property. This dirt bridged a gap between the levee and higher ground to the north. The road, however, did eventually wash out, and some of Associated's property was damaged.

On July 15, 1993, when the area was starting to flood again, Associated employee Harry McWithey began building onto the levee near the entrance of the sand pit at the northeast corner. Also on that date, Associated's general manager, Marvin Bedigrew, created a dike at the south end of the levee that was 50 to 75 feet long and 3 feet high. The dike was intended to block water that was backing up from the south.

The following day, July 16, 1993,...