Robert E. Esrey and Co. v. Dibbern, 80-52

• Decision Date: 06 December 1980
• Docket Number: No. 80-52,315-A,80-52
• Citation: 228 Kan. 784,620 P.2d 827
• Parties: ROBERT E. ESREY AND COMPANY, a Missouri Corporation doing business as Park South Apartments, Appellant, v. Floyd H. DIBBERN, State Fire Marshal, and Edward C. Redmon, as Successor to Floyd H. Dibbern, State Fire Marshal, Appellees.
• Court: Kansas Supreme Court

Page 827

620 P.2d 827

228 Kan. 784

ROBERT E. ESREY AND COMPANY, a Missouri Corporation doing business as Park South Apartments, Appellant, v. Floyd H. DIBBERN, State Fire Marshal, and Edward C. Redmon as Successor to Floyd H. Dibbern, State Fire Marshal, Appellees.

No. 80-52, 315-A.

Supreme Court of Kansas.

Dec. 6, 1980.

Syllabus by the Court

1. In an appeal from an administrative hearing, unless the statute provides otherwise, the scope of review in the district court and on appeal is limited to considering as a matter of law whether (1) the administrative tribunal acted fraudulently, arbitrarily or capriciously; (2) the order is substantially supported by evidence; and (3) the tribunal's action was within the scope of its authority.

2. In an appeal from a district court judgment upholding an order of the state fire marshal, issued after an administrative hearing, the record is examined and, as more fully set forth in the opinion, it is held : (1) the state fire marshal was acting within the scope of his authority; (2) the evidence was insufficient to support the order of the state fire marshal as to three of the four apartment buildings; (3) the evidence was sufficient to support the order of the state fire marshal as to the fourth building; (4) the order of the state fire marshal as to the fourth building is modified as set forth in the opinion; and (5) the judgment of the district court is affirmed in part, as modified, reversed in part and remanded for further proceedings not inconsistent with the opinion.

Ernest Vincent Pease, Jr., of Pease & Lewis, Topeka, argued the cause and Michael L. Lewis, of the same firm, was with him on the brief for appellant.

Bruce E. Miller, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellees.

HOLMES, Justice:

Robert E. Esrey and Company d/b/a Park South Apartments appeals from a Shawnee County District Court decision which upheld an order of the defendant Floyd H. Dibbern requiring certain doors to be replaced in the Park South Apartment complex in Topeka. Mr. Dibbern was the state fire marshal at the time and the order was issued by him in that capacity. The order directed that the sliding glass doors in four of the buildings located within the complex be replaced by hinged swinging doors. The fire marshal's determination that the existing sliding doors constituted a distinct hazard to life or property and his order of replacement were appealed to the district court pursuant to K.S.A. 1979 Supp. 31-142.

The Topeka Fire Department inspected the Park South Apartments after receiving a complaint from Sherry Chatham. Ms. Chatham's complaint originated after she was locked in or out of her apartment several times due to the accumulation of ice in the runner at the base of the sliding glass door. This door was the only entrance to her apartment and, as a result of the blockage caused by freezing ice, Ms. Chatham was confined to her apartment on one occasion for twenty-four hours. Ms. Chatham had no telephone and finally got help by attracting the attention of a passerby.

Upon inspection, Mr. Darrell B. Dibbern, of the Topeka Fire Department, Fire Prevention Bureau, found that the sliding glass doors were the only means of ingress and egress to sixty-eight apartments located in four buildings of the Park South Apartment complex. The buildings will be referred to by their numerical addresses as 3720, 3730, 3740 and 3750. Mr. Dibbern notified appellant that since the doors created a distinct hazard to life and property and were not in compliance with K.S.A. 1979 Supp. 31-133 and regulations adopted thereunder, they were to be replaced in all sixty-eight apartments by hinged swinging doors.

On May 2, 1979, an administrative hearing was held, at the request of appellant, before Paul Markley, a hearing officer from the state fire marshal's office, to consider the validity of the fire department request. Mr. Markley upheld the findings of the fire department and plaintiff appealed that determination to the district court. As the sufficiency of the evidence to justify the fire marshal's order is an issue on appeal, the evidence presented before Mr. Markley and reviewed by the district court will be set forth in some detail.

Ms. Chatham testified that her door had frozen several times and several other tenants had experienced similar problems. On one occasion she obtained help from the fire department to gain entry to her apartment. On other occasions she was assisted by other tenants or by apartment maintenance people to gain entry into or escape from the apartment. She is a rather small woman and when her door would freeze she did not have sufficient strength to force the door open. She had no telephone and when frozen in she could only obtain help by attracting the attention of passersby or other tenants. As previously stated, she was confined on one occasion for nearly twenty-four hours. She furnished names and instances of others who had also experienced frozen doors.

Gary Oyler, a Topeka fireman, testified that on one occasion he assisted Ms. Chatham in gaining entrance to her apartment when her door was frozen shut.

Arlene Stramel, an employee of plaintiff for approximately seventeen years, was called as a witness by both parties. At the time of the hearing Ms. Stramel was the manager of the apartment complex and prior to becoming manager had been assistant manager. She produced records of the number of complaints that had been received about freezing doors. The apartments were constructed in 1965 and the records indicated one complaint in building 3720 in 1977, one complaint in building 3730 in 1975, two in 1977 and six in 1979. The complaints about building 3730 included one at apartment P 2, two at apartment P 9, four at apartment P 10, and one at apartment P 16. Ms. Chatham occupied apartment P 10 and one of her complaints involved a stuck door not due to freezing. Ms. Stramel acknowledged there could have been other occurrences of frozen doors but if they were not reported to the office she would have no record of them. There had never been any complaints of frozen doors in buildings 3740 and 3750. She testified there were sixty-eight apartments in the four buildings which have a sliding door as the only means of access and egress. The apartment complex had a total of two hundred thirty-four apartments but the others open into a central hallway by conventional hanging doors. The original work orders reflecting the complaints and the action taken thereon were received in evidence along with numerous photographs of the buildings and the apartment door of Ms. Chatham.

Darrell Dibbern, a Topeka fire inspector with the fire department, investigated the complaint filed with the city by Ms. Chatham. He interviewed Ms. Chatham, inspected her door in February, 1979, and observed ice and snow in the metal tracks of the door on the outside and an accumulation of thick ice on the inside of the door. He determined the apartments had only one means of access and noticed the other doors in the four buildings were identical to the one at Ms. Chatham's apartment. He testified that under the regulations and portions of the national fire protection association life safety code adopted by the state fire marshal, the apartments were required to have at least one swinging door as a means of access and egress. He did not examine or closely inspect the doors on any of the other apartments. Based upon Ms. Chatham's complaint and his interpretation of the life safety code and Kansas statutes, he determined "a distinct hazard to life could exist with the only means of egress being by sliding doors." He applied that determination to all sixty-eight apartments in the four buildings. Plaintiff was directed to replace all sixty-eight sliding doors with "side-hinged swinging type" doors.

Floyd H. Dibbern, the state fire marshal, testified in his own behalf. He is a high school graduate and not trained as an engineer. Darrell Dibbern is his son. He had no personal knowledge of the problems at the Park South Apartments and merely accepted his son's report and made a determination the sliding doors created a severe life safety hazard. He ordered the doors changed to the swinging type. His order was based upon the investigation and report of his son and upon a determination swinging doors were required by the life safety code adopted by the regulations of the fire marshal's office. He testified he had gone to the apartment complex but only to verify that there were sliding glass doors. The doors did not meet the requirements of the code and therefore, in his opinion, constituted a distinct life safety hazard.

Next, plaintiff called Noland Paul Landry, employed by the city of Topeka as a building inspector in the building inspection department. He had been with the department nineteen years, reviewed the original plans for buildings 3720, 3730, and 3740, and identified copies of the building permits issued in 1965. The four apartment buildings, including the sliding doors, complied with the Topeka building code as it existed at the time of construction.

Plaintiff's final witness was Donald G. Dressler, a professional consulting engineer from the greater Kansas City area. He holds a B.S. degree in civil engineering from Kansas State University, is licensed as a professional engineer in Kansas, Missouri, Delaware and Pennsylvania. He was amply qualified to testify as an expert. At the request of the plaintiff he made an inspection of apartment P 10 in building 3730. It was a detailed inspection of the sliding door problems at that apartment and was conducted from both the outside and the inside. Mr. Dressler found that due to drainage from the east and the existing soil conditions, building 3730 had settled on the west side allowing cold air to infiltrate around the door. Interior moisture would then condense on the inside...