Opinion
No. 106,090.
2012-08-31
KEVIN G. DIDDE, Appellant, v. CITY OF CHAPMAN, Kansas, Appellee.
Appeal from Dickinson District Court; David R. Platt, Judge. Victor A. Bergman and David C. DeGreeff, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, for appellant. Samuel A. Green and James P. Nordstrom, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Appeal from Dickinson District Court; David R. Platt, Judge.
Victor A. Bergman and David C. DeGreeff, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, for appellant. Samuel A. Green and James P. Nordstrom, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Before BUSER, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kevin G. Didde, an employee of Larkin Excavating, was attempting to remove a plug from a City of Chapman water main when the plug ejected under pressure, struck him in the legs, and caused personal injuries. The district court granted summary judgment to the City, and Didde appeals. We affirm the district court.
Factual and Procedural Background
The district court made the following findings of uncontroveited fact:
“1. As part of a project to expand the [City's] water distribution system, the [City] through its Director of Public Works Jim Murrison, installed approximately 120 feet of dead-end pipe. A valve was placed on one end of the dead-end pipe, and a plug was placed in the other end of the dead-end pipe. The [City] did not place a blow off valve or an air relief valve on the dead-end pipe.
“2. The [City] never opened the valve or charged the dead-end pipe with water. The [City] did not sanitize or pressure test the dead-end pipe.
“3. On the date of [Didde's] accident, July 7, 2009, [Didde] asked Mr. Murrison questions regarding whether the dead-end pipe had ever been pressurized. Mr. Murrison answered [Didde's] questions accurately and truthfully: the line had not been charged, it had not been sanitized, it had not been pressure tested, and the valve was never opened.
“5. The dead-end pipe did contain pressure and some water. There was dirt in the seating of the valve that allowed pressure to pass the valve.
“6. [Didde] knew that there was no air relief or blow off valve on the dead-end pipe. [Didde] also knew the dead-end pipe had never been flushed or pressure tested.
“7. The parties were on equal ground and had equal knowledge regarding the condition of the dead-end pipe. Neither the [City] nor [Didde] knew of the pressure in the dead-end pipe. Neither the [City] nor [Didde] knew the valve leaked. Mr. Murrison had no greater knowledge regarding the existence of the pressure than did [Didde]. All parties knew there was no air relief or blow off valve on the dead-end pipe. All parties knew the dead-end pipe and the valve had not been flushed or pressure tested.
“8. [Didde] and his supervisor might have had greater knowledge regarding the condition of the pipe than did the [City] and Mr. Murrison. The condition of the dead-end pipe confronted by [Didde] is no different than routine conditions encountered by workers on water lines. Water lines contain hydrostatic pressure, valves can leak, and pressure might be present in a pipe.
“9. At the time of the accident, [Didde] was not an employee of the [City] either directly or indirectly.”
In addition to these findings, it was uncontroverted that Didde was an experienced water line worker. He had worked for the City of Leavenworth Water Department for 18 years—from 1982 to 2000—in “[a]ll aspects” of water pipe installation. During some of this time he also performed “installation of water, sanitary sewer, storm sewer, earth moving,” as a proprietor of his own business and for Leintz Excavating. On the day of his injury, Didde was working as his own supervisor for Larkin Excavating. Larkin had a contract with U.S.D. No. 473 to, among other things, make connections with the City's water distribution system for service to a new school.
The pretrial order shows a dispute between the parties regarding the theory of recovery. It states: “[Didde] asserts this is an action for personal injuries based on alleged negligence and premises liability of [City]. [City] agrees with regards to negligence, but disagrees that this is a premises liability case.”
Didde identified two important factual claims. First, he claimed the City had installed the dead-end pipe negligently by, among other things, failing to ensure the valve opening onto the system was working properly and by failing to install a pressure-release device on the dead-end pipe. Second, Didde also claimed Murrison negligently made misleading statements regarding the pressure in the dead-end pipe and failed to give notice of the dangerous condition. The parties summarize these claims on appeal as breach of a duty to install the dead-end pipe properly and breach of a duty to warn that the pipe was in a dangerous condition.
The district court held the City did not owe Didde a duty to properly install the pipe because “[i]f there was a defect in the dead-end pipe, that defect was obvious.” The district court similarly held the City did not owe Didde a duty to warn of the dangerous condition because the defect was obvious. The district court further found the City had answered Didde's questions “truthfully and accurately.” Didde appeals from the adverse judgment.
Duty to Properly Install the Pipe
Didde contends the City violated its duty to install the dead-end pipe properly. Plaintiffs generally “must prove ‘the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered.’ [Citation omitted.].” Elstun v. Spangles, Inc., 289 Kan. 754, 757, 217 P.3d 450 (2009). Because the parties agree that the district court ruled based on duty, we face no issues of breach, injury, or causation.
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal the court applies the same rules, and where the court finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Osterhaus v.. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011).
The existence of a duty under certain facts “is a question of law over which this court exercises unlimited review.” Berry v. National Medical Services, Inc., 292 Kan. 917, 920, 257 P.3d 287 (2011); see Elstun, 289 Kan. at 757.
Both parties cite the following test for duty: “To find a legal duty to support a negligence claim, (1) the plaintiff must be a foreseeable plaintiff and (2) the probability of harm must be foreseeable.” Berry, 292 Kan. at 920. Both parties then argue foreseeability. But the district court did not explicitly address foreseeability; it held any defect in the installation was obvious.
This brings us to the legal theory at issue. On appeal, Didde continues to argue “[t]his is a ... premises liability action,” and the City continues to dispute the point. Although the district court did not explicitly reference premises liability, we believe the district court correctly applied premises liability law.
Premises liability is simply “[a] landowner's or landholder's tort liability for conditions or activities on the premises.” Black's Law Dictionary 1300 (9th ed.2009); see also South v. McCarter, 280 Kan. 85, 100, 119 P.3d 1 (2005) (noting premises liability covers both physical defects in the premises and activities on the premises). Like the duty analysis conducted in negligence cases generally, premises liability also considers foreseeability:
“The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that are to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all circumstances are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of convenience or cost, in providing adequate protection.” Jones v. Hansen, 254 Kan. 499, 509–10, 867 P.2d 303 (1994).
The foreseeability analysis in premises liability law differs in at least one respect, however. A landowner “is under no duty to remove known and obvious dangers.” Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991). In Miller, 249 Kan. at 43, our Supreme Court relied in part on Restatement (Second) of Torts § 343A, comment f, p. 220 (1964), and comment b to the same section defines the terms:
“The word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. ‘Obvious' means that both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” Restatement (Second) of Torts § 343A, comment b, p. 219.
Comment e to the Restatement section provides the rationale for the rule that a landowner “may reasonably assume [an entrant on the premises] will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so.” Restatement (Second) of Torts § 343A, comment e, p. 219. As an Illinois court has observed, this is an
“application of the principle that a landholder should only be held liable for failing to prevent harm he or she could reasonably be expected to foresee. The rule stems from the presumption that it is not foreseeable that a person will intentionally encounter the risk of an open and obvious danger. [Citation omitted.]” Grant v.. South Roxana Dad's Club, 381 Ill.App.3d 665, 670, 886 N.E.2d 543 (2008).
Turning now to the present case, Didde does not brief cases on the known and obvious danger rule. Instead, he argues for a different rule: “Assuming arguendo the dangerous condition of the line was open and obvious, that fact is not dispositive. It is just a fact for consideration by the jury in assessing comparative fault. Thus, the District Court invaded the province of the jury.”
We disagree. Whether the City owed Didde a duty on uncontroverted facts is a question of law. If the City did not owe him a duty, it had no fault to compare with his. And if the uncontroverted facts show the danger was known and obvious to Didde, then the City owed him no duty under premises liability law. In Wellhausen v. University of Kansas, 40 Kan.App.2d 102, 189 P.3d 1181 (2008), for example, a student fell after crawling onto a dormitory ledge. The district court granted summary judgment to the school based on the known and obvious danger rule, and this court affirmed. 40 Kan.App.2d at 103, 105–06.
In the present case, the district court could properly grant summary judgment on the known and obvious danger rule if there were no genuine issue as to the material facts. The district court explained its reasoning while ruling from the bench:
“[I]f it was a defect, the Court believes it's an obvious one, and that anyone with any experience and knowledge of ... waterlines and those types of things, when you notice a plug, and there's no relief valve on it, it's ... quite obvious, at that point, that it's a potentially dangerous situation.”
We are persuaded that Didde has not come forward with disputed material facts on this point.
Didde observes that “a pressure relief valve ... would have eliminated the entire issue.” Didde does not dispute, however, that he knew the dead-end pipe lacked such a valve. Didde also does not dispute that he knew water systems are pressurized, that valves sometimes leak, and that the valve in this particular case had not been flushed or pressure tested. It would be obvious to a reasonable person in Didde's position, therefore, that pressure might seep into the dead-end pipe and expel the plug when loosened.
Didde points out that he asked Murrison whether the dead-end pipe had “ever been ‘turned on’/pressurized.” We will consider this under his duty to warn claim. More relevant is Didde's argument that the City did not install a cap or thrust block as is typical with a “pressurized pipe.” Didde treats the omission as one might treat an omission of warning flags around an open pit: “Had the cap or concrete thrust block been in place that would have signaled to [Didde] that the ‘dead end’ line may be under pressure.”
A cap or block is not intended to warn of pressure, but to contain it. It was Didde who inferred from the omission of these devises that the dead-end pipe was not under pressure. Didde calls this a “false sense of security,” but even if the omission produced this effect in him, he still knew of the omission. He could observe there was nothing holding the plug in place. Moreover, based on his years of experience he understood that valves sometimes leak and that the City had not flushed or pressure tested this particular valve. It would have been obvious to someone in Didde's position—an experienced water line worker employed by a company hired to make the connection to the dead-end pipe—that the plug might be expelled under pressure if it were loosened.
Didde's position makes the present case analogous to Aspelin v. Mounkes, 206 Kan, 132, 133, 476 P.2d 620 (1970), where a landowner hired carpenters to install new roofs on his barns. While they were doing so a roof gave way, causing the carpenters to fall. Our Supreme Court held the owner was not liable based on “the rule an owner of premises is under no duty to protect an independent contractor from risks arising from or intimately connected with defects in the premises which the contractor has undertaken to repair.” 206 Kan. at 135.
The United States District Court for the District of Kansas applied Aspelin in a diversity action involving injuries suffered by the employee of an independent contractor hired to repair a large machine. Guignet v. Lawrence Paper Co., Inc., 859 F.Supp. 515, 519 (D.Kan.1994). The federal court considered Aspelin to be one case among others recognizing an “exception” to the general duty owed to invitees:
“These courts have generally recognized that the duty owed to an invitee is based on the proposition that an owner has, or at least should have, superior knowledge of the dangers related to the premises. [Citation omitted.] That assumption, however, loses its validity when the owner has summoned the invitee onto the premises specifically to repair some defect or condition about which the invitee possesses specialized knowledge or technical skill.” 859 F.Supp. at 519.
Although the City did not hire Larkin Excavating and although Larkin Excavating was not attempting to “repair” the dead-end pipe, the exception noted by the federal district court is still persuasive. Didde is arguing the dead-end pipe was in a dangerous condition due to its installation. But it was Didde's task to make the connection, and it was obvious to someone in Didde's position that the dead-end pipe might contain pressure.
After Aspelin and Guignet were decided, our Supreme Court abandoned the common-law approach which had gauged “the duty owed by [a landowner] of land” to the status of the plaintiff, i.e., as invitee or licensee. Jones, 254 Kan. at 509. But Jones did not prohibit a court from considering the position of the invitee or licensee with respect to the landowner. To the contrary, our Supreme Court directed Kansas courts to consider the “standard of ‘reasonable care under the circumstances.” ’ (Emphasis added .) 254 Kan. at 507. Our Supreme Court merely intended to do “away with the artificial classifications and distinctions arising ... between licensee[s] and invitees, classifications that we have recognized no longer fit contemporary society.” 254 Kan. at 509.
Didde's position as an experienced water line worker is therefore relevant in determining the City's duty. Because the danger Didde faced was obvious to someone in his position, the City owed him no further duty based on the installation of the pipe.
Duty to Warn
Didde suggests the district court
“granted ... summary judgment based, in part, on its finding that Murrison's statement to [Didde] ... which misled [him] into believing the ‘dead end’ water line was not under pressure, did not breach any ... duty to warn ... because the parties had ‘equal knowledge’ of the dangerous condition and the statement was ‘truthful and accurate.” ’
We disagree. The district court held the City had no duty to warn because any defects in the line and resulting dangerous conditions were obvious to Didde.
The district court was once again applying premises liability law. A landlord generally does not have duty “to warn of known and obvious dangers.” Wellhausen, 40 Kan.App.2d 102, Syl. ¶ 1;see Tillotson v. Abbott, 205 Kan. 706, 711, 472 P.2d 240 (1970). The district court considered Murrison's statements to Didde only to the extent that Didde's question triggered a further duty to answer truthfully and accurately.
The district court held the City had met this duty. While Didde argues this holding invaded the province of the jury, he does not identify any disputed material facts regarding the truthfulness or accuracy of Murrison's statements. This is akin to failing to brief an issue. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010); Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008).
If we were to consider the issue, we would not find reversible error. The record shows the City served the following Interrogatory No. 11 on Didde: “Please state in detail your version of how the occurrence complained of in your Petition took place.” Didde swore to the following:
“On the morning of July 7, 2009, I called the job superintendant, John Sweeney, and asked if he would call the City ... and ask them to come and verify whether the line we were preparing to tie into was ‘on’ or ‘off’. Jim Murrison came within 30 minutes and showed where the end of the line was and said he was involved with the installation of the line personally, it had never been turned on and the line had never been pressurized.”
At his deposition, Didde was asked whether he had “any discussions with [Murrison] about that location whether the pipe was pressurized or not, valves were on or off or any other issues regarding the ... assembly up there?” Didde answered, “No, sir.” Counsel directed Didde to his answer in Interrogatory No. 11 and asked, “What do you mean whether the line was on or off?” Didde answered, “Is it pressurized or non pressurized.” Counsel and Didde later had the following exchange:
“Q. When ... you were asking the question as recited in your answer 11 to the interrogatories from [the City] ... about whether the line was on or off, what did you mean by that?
“A. Is the line pressurized. Has it ever been pressurized or not.
“Q. Did that question have to do with whether the valve had ever been in the position which would allow water pressure to ... flow? I mean, is that the same question?
“A. I want[ed] to know whether the line is on or off now.
“Q. Okay. On or off. On ... would be that it was accepting water into the pipe.
“A. Or it was pressurized.
“Q. Right. By the water.
“A. Yes, sir.”
We conclude there was no dispute of material fact regarding the meaning of Didde's question or of Murrison's answer. Didde asked Murrison whether the City had pressurized the dead-end pipe by opening the valve to the rest of the water distribution system. Murrison accurately said the City had not pressurized the pipe. Didde was not asking Murrison whether the pipe contained any pressure in excess of atmospheric pressure, from whatever source, something neither man could know without further investigation.
Didde also contends the finding that he and the City had equal knowledge invaded the province of the jury. Once again, however, Didde bore a duty to come forward with material facts in opposition to summary judgment. Didde does not show Murrison had superior knowledge, and the facts identified by Didde were known or obvious to him, such as the City's failure to “[f]lush the gate valve to remove dirt/debris,” “[ijnstall a restraining cap or concrete thrust block,” or “[ijnstall a pressure relief mechanism of any kind in the line.”
Didde does note Murrison “knew or should have known that the City did not [c]omply with the KDHE Design Requirements” or “with the engineering Plans and Specs for the project.” But this lack of compliance would be material only if it affected the dead-end pipe. Didde has not shown that it did.
Finally, Didde attempts to establish that the City had “implied knowledge of the dangerous condition of the ‘dead-end’ water line because it created that condition.” Since the conditions which led to the pressure inside the dead-end pipe were known or obvious to Didde, the only remaining knowledge would be of the pressure itself. But the pressure was not actually known by either party, it could only be implied. And if implied, Didde would have to show the law imputed that knowledge to the City but not to him.
Didde begins by stating:
“Generally, before a defendant may be held liable for an injury resulting from a dangerous condition of its property, the plaintiff must show that the defendant had actual knowledge of the condition, or that the condition had existed for such a length of time that in the exercise of ordinary care the defendant should have known of it.”
We agree with this statement of the law. See Brock v. Richmond–Berea Cemetery Dist., 264 Kan. 613, Syl. ¶ 3, 957 P.2d 505 (1998). Didde then argues: “An exception to this general rule exists when the defendant created or maintained the dangerous condition.”
In support of this exception, Didde cites Kimes v. Unified School Dist. No. 480, 934 F.Supp. 1275, 1280 (D.Kan.1996), a slip and fall case, which noted that Kansas law makes an “exception[ ] ... to the rule requiring proof of notice of a dangerous condition” when “the dangerous condition was created or maintained by the defendant or by those for whom it was responsible.” Kimes cites Knowles v. Klase, 204 Kan. 156, 157, 460 P.2d 444 (1969), which was also a slip and fall case. The other cases cited by Didde or located by research are similarly slip and fall cases. See Johnson v. Farha Village Supermarkets, Inc., 208 Kan. 241, 243, 491 P.2d 904 (1971); Carter v. Food Center, Inc ., 207 Kan. 332, 335, 485 P.2d 306 (1971); Elrod v. Walls, Inc., 205 Kan. 808, 811, 473 P.2d 12 (1970); Smith v. Mr. D's, Inc., 197 Kan. 83, 85, 415 P.2d 251 (1966); Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 33, 402 P.2d 767 (1965).
The most recent statement of this exception located by research is Jackson v. K–Mart Corp., 251 Kan. 700, 703, 840 P.2d 463 (1992), a slip and fall case, and it relied upon Little v. Butner, 186 Kan. 75, 81, 348 P.2d 1022 (1960), another slip and fall case. The governing principles stated in Little are as follows:
“ ‘[T]he liability of a proprietor of a business is predicated upon his superior knowledge concerning dangerous conditions and his failure to warn persons present of the risk. With respect to the necessity of proof that the proprietor of a store in which the plaintiff was injured in a fall on an interior floor had notice of the dangerous condition, the cases are divided into two classes: (1) injuries to customers caused by dangerous conditions negligently created or maintained by the proprietor or his servants [citations omitted], and (2) injuries due to dangerous conditions coming about through no active fault of the proprietor and not involving an instrumentality employed by him in the conduct of his business [citations omitted]. Under the former, the condition is one that is traceable to the proprietor's own act, that is, a condition created by him or under his authority, or is one in which he is shown to have taken action, and proof of notice is unnecessary. Under the later, where the floor has been made dangerous by the presence of an obstacle which is traceable to persons for whom the proprietor is not responsible, absent a condition created by himself, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of reasonable care he should have known of it.’ [Citations omitted.]” Jackson, 251 Kan. at 703 (quoting Little, 186 Kan. at 81).
Didde does not show this line of cases, based on the superior knowledge of store proprietors over their customers, should apply in the present case. Didde and the City had equal knowledge of the conditions which could cause the pressure in the dead-end pipe, and neither had actual knowledge of the pressure itself. Didde was more sophisticated and less dependent upon the City than is a customer with respect to a store proprietor. Didde therefore has not shown that implied knowledge of the pressure inside the dead-end pipe should be imputed to the City but not to him.
Affirmed.