Olson v. State Highway Com'n of Kansas, 54370

• Decision Date: 24 March 1984
• Docket Number: No. 54370,54370
• Citation: 235 Kan. 20,679 P.2d 167
• Parties: Martha OLSON, Appellant, v. STATE HIGHWAY COMMISSION OF KANSAS (Secretary of Kansas Department of Transportation), and J.A. Tobin Construction Company, Appellees.
• Court: Kansas Supreme Court

Page 167

679 P.2d 167

235 Kan. 20

Martha OLSON, Appellant, v. STATE HIGHWAY COMMISSION OF KANSAS (Secretary of Kansas

Department of Transportation), and J.A. Tobin

Construction Company, Appellees.

No. 54370.

Supreme Court of Kansas.

March 24, 1984.

Supreme Court of Kansas

1. Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, this court will read the record in the light most favorable to the party who defended against the motion for summary judgment.

2. In an action for damages to real property when there is an isolated act of negligence which concurrently results in substantial injury which is reasonably ascertainable, the two-year statute of limitations begins to run from the date the act occurred and the injury was sustained. K.S.A. 60-513(a)(4).

3. In an action such as that described in syllabus p 2 when there is an act of negligence resulting in immediate injury not readily apparent to the innocent party, or when the injury itself is delayed for a period of time, the limitation period is triggered not on the date of the wrongful act, but when the consequent injury first becomes substantial or is reasonably ascertainable.

4. No hard and fast rule can be adopted as to when damages are deemed permanent and when they are deemed temporary. Each case must be considered in light of its own facts.

5. An action for permanent damages to real property shall not be deemed to accrue until substantial injury is reasonably ascertainable.

6. Summary judgment may be proper on the affirmative defense of the statute of limitations where there is no dispute or genuine issue as to the time when the statute commenced to run. But where the evidence is in dispute as to when substantial injury first appears or when it becomes reasonably ascertainable, the issue is for determination by the trier of fact. Following Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971).

R. Owen Watchous, Olathe, argued the cause and was on the brief for appellant.

Lisa E. Schwinn, Staff Atty., Topeka, for the Kansas Department of Transportation, argued the cause, and David G. Tittsworth, Chief Counsel, Topeka, was with her on the brief for appellee State Highway Commission.

Jeffrey L. Lauersdorf, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause and Richard T. Merker, Overland Park, of the same firm, was with him on the brief for appellee J.A. Tobin Construction Company.

HOLMES, Justice:

Martha Olson, the plaintiff in an action against J.A. Tobin Construction Company (Tobin) and the State Highway Commission, now the Kansas Department of Transportation (KDOT), for damages to her real property resulting from a highway construction project, appeals from a decision of the district court granting summary judgment on the grounds plaintiff's claims were barred by the statute of limitations. The only issue before this court is whether the trial court was correct in its application of the statute of limitations.

Plaintiff's petition sought recovery from defendants on theories of negligence and strict liability. She claimed damage to a pond on her property, damage to the foundation and cistern of her new house, and the destruction of fences along part of her land. Reading the record in the light most favorable to the plaintiff, the party who defended against the motion for summary judgment, as we must on appeal (McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. p 4, 662 P.2d 1203 [1983], the facts of this case are as follows.

Defendants' construction of the highway began in 1977. Evidently a portion of plaintiff's property, including her home, was purchased by the State for highway right-of-way. Kenneth Olson, plaintiff's son, began construction in the spring of 1978 of a new home for his mother on the remaining portion of the property. The concrete foundation for the new home was poured in April or May of 1978. Tobin, in its construction of the new highway, was conducting blasting operations at this same time within about one-eighth of a mile of plaintiff's construction. In May or June, Kenneth Olson discovered a hairline crack in the north wall of the new basement. He called this to the attention of the Tobin employee in charge of the dynamite operation and, after viewing it, the employee made representations to the effect they would return after the blasting was completed. Plaintiff construed this to mean representatives of Tobin or KDOT would return at a later date to inspect and discuss any damage. The initial blasting continued throughout the summer of 1978 until August or September. Blasting was resumed in late 1978 and continued into 1979 with the last blasting being done in September, 1979. At its closest point the blasting occurred within one hundred feet of plaintiff's new home. When plaintiff and her son moved into the home April 1, 1979, they did not make any further inspections for damage to the foundation. However, in March, 1980, Kenneth Olson discovered fourteen or fifteen cracks in the foundation walls running from the ceiling to the floor. Upon completion of the blasting operations no one from Tobin or KDOT returned to talk to plaintiff or her son about the original damage. It is alleged that the additional cracking of plaintiff's basement walls occurred from the blasting operations carried on in late 1978 or early 1979.

Plaintiff also suffered damage to a one acre pond which had been on her property since 1976. While the findings of the trial court are confused, Tobin evidently began construction of an elevated dirt fill to form the base of the highway in the spring or early summer of 1978. The testimony is conflicting whether the dirt fill was completed in September of 1978 or not until the spring of 1979. In either case a ditch resulted running from the highway fill to plaintiff's pond, carrying water, mud, soil and silt from the fill. This soil settled and accumulated in plaintiff's pond. When the pond was built in 1976, it was one acre in size, with a depth of ten to twelve feet. The erosion from defendants' fill caused an accumulation of four to six feet of dirt in the pond, at an estimated damage of $18,500.00. Due to the original depth of the pond and the gradual accumulation of silt, it was not discovered until late 1979 or early 1980.

Finally, plaintiff claims damages for two fences allegedly damaged by defendants. One was cut by a bulldozer and the other was buried under mud slides from the highway fill. Plaintiff had assumed the fences would be repaired when the highway construction was completed. When the construction was completed in 1980, the fences were not repaired or replaced.

Mrs. Olson originally filed suit against the defendants on October 29, 1980. Due to procedural difficulties the case was dismissed "for lack of proper prosecution" on December 3, 1981. It was refiled pursuant to K.S.A. 60-518 on December 16, 1981. All parties agree that the appropriate statute of limitations is two years as provided in K.S.A. 60-513(a)(4) and that October 29, 1980, is the controlling filing date. The trial court granted summary judgment to defendants on the grounds that permanent injury to plaintiff's basement, pond and fences first occurred in the spring or summer of 1978 and therefore all damages were precluded because this action was not filed until October 29, 1980, more than two years from the initial injury to the property.

The major issue in this case is whether, under these facts, it was proper for the trial court to grant summary judgment against plaintiff on the ground her claims were barred by the statute of limitations. Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, this court will read the record in the light most favorable to the party who defended against the motion for summary judgment. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. pp 1, 2, and 4, 662 P.2d 1203 (1983). The record in this case consists of the depositions of Martha and Kenneth Olson, the deposition exhibits and the transcript of the proceedings from the first case and the pleadings, trial briefs and transcripts in the case being appealed.

We agree the applicable earliest date which would not be barred by the statute of limitations is October 28, 1978, and that the applicable period in this case is the two years defined by K.S.A. 60-513(a)(4). However, subsection (b) of that statute provides:

".... the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action." (Emphasis added.)

The application of this statute in the case of an isolated act of negligence concurrently injuring another person or his property is clear--the two year period begins to run from the date the act occurred and the injury was sustained. The focus is not, however, on the faulty act or condition itself, but on its effect. When there is an isolated act resulting in immediate injury not...