Gilger v. Lee Construction, Inc.

820 P.2d 390, 249 Kan. 307, 1991 Kan. LEXIS 156
CourtSupreme Court of Kansas
DecidedOctober 2, 1991
Docket64,511
StatusPublished
Cited by57 cases

This text of 820 P.2d 390 (Gilger v. Lee Construction, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilger v. Lee Construction, Inc., 820 P.2d 390, 249 Kan. 307, 1991 Kan. LEXIS 156 (kan 1991).

Opinions

The opinion of the court was delivered by

Herd, J.:

This is a tort action for injuries sustained by the McGraw family as a result of long-term exposure to carbon monoxide. They contend the heating system in their house was negligently designed and installed by Lee Construction, Inc., (Lee) and Unger Heating and Air Conditioning (Unger). Appellants further allege Peoples Natural Gas Company (Peoples) negligently failed to find or correct the problem.

The district court found the action was barred by the statute of limitations and granted summary judgment in favor of Unger, Lee, and Peoples. Appellants appealed and the Court of Appeals reversed. Gilger v. Lee Constr., Inc., 14 Kan. App. 2d 679, 798 P.2d 495 (1990). We granted the appellees’ petition for review.

The following facts gave rise to the controversy: Lee was the general contractor for a residence in Sagebrush Estates, Garden City, Kansas, and Unger, a subcontractor, installed a two-fumace heating system in the residence. All work was completed by August 1, 1977.

The McGraws moved into the residence in 1981. Within the first year of moving into their new home, Kathryn McGraw began to experience health problems. In the next several years she consulted numerous physicians for headaches, nausea, numbness in her arms and legs, digestive problems, menstrual pain, rapid heart rate, joint pain, and hallucinations. Kathryn suspected gas in the house was the source of her health problems, but also attributed the health problems to various other medical conditions. In January 1983, Kathryn’s mother, Iona R. Gilger, moved into the McGraws’ residence. By October, 1985, all family members living in the house suffered health problems.

In 1982, Peoples sent a serviceman to the McGraw residence to check a purported gas leak in the furnace; however, no leak was discovered. Sometime in 1984 or 1985 the Finney County Sanitarian and Finney County Building Inspector visited the McGraw residence in response to complaints by Kathryn about the heating system. Appellants were advised that fresh-air ventilation was needed in the furnace room. On February 15, 1985, [310]*310Unger inspected the McGraws’ furnace and flue and discovered a bird’s nest which caused the flue to backdraft. Correction of these defects did not stop the health problems.

In mid-October 1985, Howard Sheets began carpentry work on the McGraw residence. Mr. Sheets became ill and suggested to Kathryn that she have the furnace checked for a gas leak. On October 18, 1985, Peoples inspected the McGraw residence for carbon monoxide and natural gas. Peoples found the furnace operated properly. On October 23, 1985, Unger once again checked the McGraws’ furnace to assure it was working properly. At no time were the appellants warned by Unger or Peoples about improper venting of the furnace.

The appellants contend they did not discover their health problems were caused by the improperly vented furnace until November 24, 1985, when Calvin Fowler inspected the furnace. Appellants filed a negligence suit against Unger, Lee, and Peoples on November 16, 1987.

Upon ruling on appellees’ motions for summary judgment, the district court concluded all alleged negligent acts occurred prior to November 14, 1985, and that the adult appellants knew or could have reasonably ascertained prior to November 14, 1985, that their injuries were caused by appellees’ negligent acts. Thus, the court found appellants’ action was time barred by K.S.A. GO-SIS and granted summary judgment. As for the minor appellants, the district court determined their negligence action against Lee and Unger was barred by an eight-year statute of limitations, K.S.A. 60-515, because the negligent act giving rise to the cause of action occurred no later than August 1, 1977, when the house was fully constructed. The minor appellants’ claim against Peoples, however, was found within the statute of limitations because Peoples’ last act of negligence occurred on or prior to October 18, 1985, when it inspected the McGraws’ furnace.

Upon appeal, the Court of Appeals ruled that summary judgment was improper because genuine issues of fact remained as to when the appellants ascertained their injuries were the result of appellees’ negligence. 14 Kan. App. 2d at 687-88. The Court of Appeals also determined that the act giving rise to appellants’ cause of action did not occur in 1977 as the district court found, [311]*311but in 1981, when appellants were first exposed to appellees’ negligence. 14 Kan. App. 2d at 691.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. On appeal, we read the record in the light most favorable to the party who defended against the motion for summary judgment, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990); Mick v. Mani, 244 Kan. 81, 83, 766 P.2d 147 (1988); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).

Where the affirmative defense of the statute of limitations is asserted, summary judgment may be proper where there is no dispute or genuine issue as to the time when the statute commenced to run. But in a tort action where the evidence is in dispute as to when substantial injury first appears or becomes reasonably ascertainable, the issue is for determination by the trier of fact. Hecht v. First National Bank & Trust Co., 208 Kan. 84, 93, 490 P.2d 649 (1971); George v. W-G Fertilizer, Inc., 205 Kan. 360, 366, 469 P.2d 459 (1970).

The statute of limitations for a tort action is two years. K.S.A. 60-513(a). The date upon which the statute of limitations commences in this case is determined by K.S.A. 60-513(b). It provides:

“Except as provided in subsection (c) of this section, 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.”

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Cite This Page — Counsel Stack

Bluebook (online)
820 P.2d 390, 249 Kan. 307, 1991 Kan. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilger-v-lee-construction-inc-kan-1991.