Opinion
No. 107,542.
2013-02-1
Donald and Caron KIPP, Appellants, v. CITY OF GYPSUM, Kansas, Appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge. Larry G. Michel and Karen Q. Couch, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant. Allen G. Glendenning, of Watkins Calcara, Chtd., of Great Bend, for appellee.
Appeal from Saline District Court; Jerome P. Hellmer, Judge.
Larry G. Michel and Karen Q. Couch, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant. Allen G. Glendenning, of Watkins Calcara, Chtd., of Great Bend, for appellee.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is a complex case involving the flooding of Donald and Caron Kipps' (the Kipps) property near Gypsum, Kansas. The city of Gypsum—located between 2 creeks—decided to install a flood control project to protect the city from flooding. After considering several different designs, Gypsum chose a flood control system that included, in part, the installation of a floodgate. The project was completed in 1982. In April 2009, Gypsum and the surrounding area received a significant rainstorm. The rainstorm left most of the Kipps' property—except for their residence—under water for several days. Because of the flood, piles of agricultural byproducts and debris were left on the property. Moreover, sand, dirt, and soil were washed away from the property.
After informal attempts to resolve the dispute fell through, the Kipps sued Gypsum. The Kipps' petition alleged in part that their injuries occurred because of Gypsum's implementation of the floodgate and because a dike that was installed as part of the project had been tilled over by nearby farmers. On August 1, 2011, Gypsum moved for summary judgment. The trial court granted Gypsum's motion for summary judgment, holding that the Kipps' claims were barred by the statute of limitations and statute of repose. The court also held that Gypsum was entitled to summary judgment because it had obtained an easement by prescription to use the Kipps' property. Based on those holdings, the trial court stated that it was unnecessary to consider the other defenses raised in Gypsum's summary judgment motion.
On appeal, the Kipps contend the following: (1) that the trial court erred in finding that the statute of limitations barred their claims; (2) that the trial court erred in finding that the statute of repose barred their claims; and (3) that the trial court erred in finding that Gypsum had obtained an easement by prescription to use their land. The Kipps also contend that the additional arguments raised in Gypsum's brief have no merit. Gypsum was entitled to summary judgment under the Kipps' claims involving the installation of the floodgate because their claims are barred by the statute of limitations. Even so, the trial court erred in finding that Gypsum was entitled to summary judgment under the Kipps' claim that the city was negligent in allowing a dike to be tilled over by farmers. Accordingly, we affirm in part, reverse in part, and remand to the trial court for trial.
Facts
Because the city of Gypsum, Kansas, is located between two creeks, it has suffered from flooding. In the 1960s, Gypsum began investigating flood control projects that would protect it from flooding. On January 3, 1966, Gypsum's governing body passed a resolution under the Flood Control Act of 1948—33 U.S.C. § 701s (2006). The resolution contained a preliminary flood control plan and stated that Gypsum would cooperate with the Army Corps of Engineers to develop and complete a flood control project.
Over the next several years, changes were made to the preliminary flood control plan. In September 1973, the Department of the Army issued a report entitled “Alternate Flood Protection Plans for Gypsum, Kansas” (report). The report contained six alternative flood protection plans. Additional plans were proposed for the flood control project over the next several years. Specifically, a plan submitted in July 1978 stated that existing culverts underneath K–4 highway were to be plugged and replaced with a new 36? culvert under K–4 highway.
The following year, the chief of the hydrology and hydraulics section—Lloyd Wisdom—expressed concern about the reaction of downstream landowners to the proposed culvert. Thus, Wisdom provided three alternative proposals, one of which was to install a floodgate instead of the proposed culvert. Wisdom noted that installation of the floodgate would cause ponding on the property west of the gate and that the water would recede when the gate was reopened.
Gypsum followed Wisdom's recommendation and in 1979, the floodgate was installed near 8240 E K–4 highway, Gypsum, Kansas (property). Shortly after the fence was installed, the owner of the property, George Frisbie, complained about ponding on his property. To combat the ponding, Frisbie, Gypsum, and others discussed a solution referred to as the “Hillside Drainage Project” (Hillside drainage project). In December of 1981, Gypsum decided not to pursue the Hillside drainage project. After Gypsum denied the Hillside drainage project, the deputy district engineer for the Army Corps of Engineers issued a formal notice that the Hillside drainage project would not be included in the flood control plan.
Construction of the flood control project was completed in early 1982. In September 1982, the Army Corp of Engineers issued the Operations and Maintenance Manual for the flood control project. There have not been significant changes to the flood control project since its completion in 1982. In 1993 and 1995, Frisbie wrote letters to the city complaining about the ponding on his property in an attempt to revive the Hillside drainage project. For personal reasons, Frisbie stopped pursuing a change to the flood control project, and he decided not to sue the city. Gypsum once again decided not to pursue the Hillside drainage project.
Frisbie eventually sold the property to David and Stacy Meyers. In 2005, the Meyers placed the property for sale. The Kipps, residents of Arizona, were searching for properties in Saline County, Kansas, to be close to relatives. After finding the property during an internet search, the Kipps made several trips to view it. During one trip to view the property, Stacy Meyers told Caron that the low pasture on the property sometimes had standing water on it. Even so, no one told the Kipps about the city's floodgate located near the property.
In December 2005, the Kipps purchased the property. The Kipps later made improvements and renovations to the property. In particular, the Kipps spent approximately $194,500 adding space to the residence and developing the property so that they could board horses commercially. In April 2009, Gypsum and the surrounding area received a significant rainstorm. The rainstorm left most of the Kipps' property—except for their residence—under water for several days. Because of the flood, piles of agricultural byproducts and debris were left on the property. In addition, the flood washed away sand, dirt, and soil.
After informal attempts to resolve the dispute ended unsuccessfully, the Kipps sued Gypsum. The Kipps' suit sought the following damages: $34,900 for cleanup costs; $2,500 for reseeding their pastures; $290,000 for lost profits, and a diminution in the value of their land. The Kipps' petition alleged, in part, that their injuries occurred because of Gypsum's construction of the floodgate and a dike, which was installed as part of the floodgate project. The dike had been tilled over by nearby farmers. On August 1, 2011, Gypsum moved for summary judgment. Gypsum's summary judgment motion asserted, in part, that the Kipps' claims were barred by the statute of limitations and the statute of repose; that the city had obtained an easement by prescription; and that the Kipps' claims were barred because of the city's immunity.
After the Kipps responded to Gypsum's summary judgment motion, the trial court held a hearing on Gypsum's motion. At the conclusion of the hearing, the trial court granted summary judgment in favor of Gypsum. Specifically, the trial court held the following: “[T]he Motion for Summary Judgment on the basis of the statute of limitation, Statute of Repose and easement is granted. It is unnecessary for the court to review the other issues raised.”
Standard of Review
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, summary judgment is appropriate. 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. To preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010). When the controlling facts are based on the parties' joint stipulation, an appellate court determines de novo whether the moving party is entitled to a judgment as a matter of law. Weber v. Board of Marshall County Comm'rs, 289 Kan. 1166, 1175–76, 221 P.3d 1094 (2009). The interpretation and application of a statute of limitations is a question of law over which an appellate court has unlimited review. Brown v. State, 261 Kan. 6, 8, 927 P.2d 938 (1996).
Statute of Limitations
Here, the applicable statute of limitations or statute of repose, depends on whether the prior damages to the Kipps' property were permanent or temporary. The Kipps first argue that the trial court erred in classifying their damages as permanent. In the alternative, the Kipps request that this court “remand the question of damages to be determined by the trier of fact.” On the other hand, Gypsum maintains that the trial court “did not err by characterizing [the Kipps'] damages from the floodgate as permanent.” Even so, Gypsum concedes that any damages to the Kipps' property that occurred because the nearby dike had been tilled over were temporary. Footnote 3 in Gypsum's brief states:
“Again, it is important to distinguish between the claims relating to the flood gate and ponding easement and the claim for one time damage due to the tilled down dike. [Gypsum] has not contended below or here that the claim for 50% of the clean up costs for the April 2009 event is barred by the statute of limitations. Summary judgment on that claim is appropriate for other reasons addressed below.”
The question of when a cause of action for damages first accrues because water overflows on land is not easily determined. As a result, authorities have not always been consistent when answering this question. “ ‘This is true even in our own jurisdiction where it must be admitted there is some contrariety in our decisions.” [Citation omitted.] Dougan v. Rossville Drainage Dist., 270 Kan. 468, 476, 15 P.3d 338 (2000).
Nevertheless, under Kansas law, the determining factor for starting the statute of limitations in damages actions from flooding caused by construction is whether the injury was temporary or permanent. 270 Kan. at 472–73. To determine whether the damages are temporary or permanent, the court applies a three part test: (1) the nature of the causative structure; (2) the nature of the damages; and (3) the ability to determine or estimate damages. Isnard v. City of Coffeyville, 260 Kan. 2, 9, 917 P.2d 882 (1996). When making this determination, “ ‘[e]ach case must be considered in its own factual setting.’ [Citation omitted.]” 260 Kan. at 5. These three factors will be addressed individually.
A. Nature of the Causative Structure
The Kipps argue that the causative structure—the floodgate—is temporary because it was not included in the July 1978 plan that called for existing culverts underneath K–4 highway to be plugged and replaced with a new 36? culvert under the highway. In addition, the Kipps argue that the other causative structure—the dike—is temporary because part of it had been tilled over.
The Kipps' argument that the floodgate and the dike were temporary structures under the project is flawed. Gypsum correctly notes that the Kipps' argument is a logical non sequitur, meaning that it does not necessarily follow. Simply because the floodgate was not included in the development plans that the Kipps' believed Gypsum should have chosen does not mean that the floodgate was temporary. Indeed, after careful consideration and after evaluating several alternative plans, Gypsum decided to construct the floodgate, which has been in operation for more than 30 years. Similar reasoning applies to the dike that was tilled over. Simply because the dike had been tilled over does not show that Gypsum did not intend for it to be a permanent part of the flood control project. In fact, once Gypsum was aware that a portion of the dike had been tilled over, it replaced the dike. Gypsum's replacement of the dike supports an inference that it controlled the maintenance of the dike and intended for the dike to be a permanent part of the flood control project. As a result, Kipps' argument that the causative structure, the floodgate, is temporary is not warranted by the facts.
B. Nature of the Damages and Ability to Determine or Estimate Damages
But a finding that the causative structure is permanent does not end the analysis. Next, we must consider the nature of the damages and if those damages can be determined or estimated. Regarding temporary damages, our Supreme Court has stated the following:
“Temporary damages limit recovery for injury that is intermittent and occasional and when the cause of the injury is remediable, removable, or abatable. Damages are awarded on the theory that the cause of the injury may and will be terminated. Temporary damages are defined as damages to real estate which are recoverable from time to time as they occur from injury. [Citation omitted.] If the damages are temporary and the injury abatable, the general rule is that a new cause of action accrues with each new injury, at least until the injury becomes permanent.” [Citation omitted.] 270 Kan. at 473.
As for permanent damages, our Supreme Court has explained:
“Permanent damages are awarded on the theory that the cause of an injury is fixed and that the property will always remain subject to the injury. Permanent damages are damages for the entire injury done—past, present, and prospective—and, generally speaking, those which are practically irremediable. If an injury is permanent in character, all the damages caused thereby, whether past, present, or prospective, must be recovered in a single action. [Citation omitted.] If a plaintiff suffers permanent damages, the cause of action begins to run at the time of the damage.” 270 Kan. at 473.
The Kipps contend that “the unpredictability and recurrent nature of the injuries falls squarely on the side of temporary, rather than permanent.” The Kipps' argument has some merit. “Damages cannot be awarded on mere conjecture....' [Citation omitted.]” Dougan, 270 Kan. at 474. While the previous owners indicated that the property had flooded approximately once or twice a year since the installation of the floodgate, the Kipps stated that the property had never experienced flooding up to the residence until the flood in 2009. In addition, the Kipps stated that they had never experienced accumulation of debris or damage to their horse arenas until the flood in 2009. Thus, even though it was apparent that there might be some damage to the Kipps' property in the future, the nature and extent of that damage would have been highly speculative.
For instance, the ponding of the Kipps' property was contingent on substantial rain fall in a short period of time, was contingent on the amount of time the floodgate remained opened or closed, and was contingent on the nearby creeks' water level immediately before the rainfall. Accordingly, it would have been speculative as to when the necessary combination of events and circumstances would occur, and if so, to what degree.
Moreover, two causes of action raised in the Kipps' petition further support the position that the damages should have been classified as temporary. In their petition, the Kipps raised allegations of trespass and nuisance. Unlike a negligence action, which runs from an act or omission of a defendant, a trespass action does not occur until an entry is accomplished and the damages occur. Dougan, 270 Kan. at 475. In other words, “ ‘[i]n a trespass action, the intrusion and the interference and the occurrence of damage are concurrent. The act committed by the defendant may have taken place much earlier, but there was no trespass until the surface was affected.’ [Citation omitted.]” 270 Kan. at 475.
Under a nuisance action our Supreme Court has stated the following:
“ “ ‘There are cases in which the original act is considered as a continuing act, and daily giving rise to a new cause of action. Where one creates a nuisance, and permits it to remain, so long as it remains it is treated as a continuing wrong, and giving rise, over and over again, to causes of action. But the principle upon which one is charged as a continuing wrongdoer is, that he has a legal right, and is under a legal duty, to terminate the cause of the injury.’ “ [Citation omitted.]” Dougan, 270 Kan. at 475–76.
Based on these theories, an argument can be made that the Kipps' damages were temporary. While Gypsum's installation of the floodgate took place much earlier than the flood in 2009, the Kipps did not experience a trespass until the surface of their property was affected. Similarly, if Gypsum's installation of the floodgate is considered to be a nuisance, it would be treated as a continuing wrong giving rise to a new cause of action each time the Kipps' property was flooded. Consequently, an argument can be made that the nature of the damages were temporary and that the estimation of those damages was highly speculative.
Nevertheless, there is evidence that supports the opposite conclusion, i.e., that the damages were permanent. As stated earlier, our Supreme Court defined permanent damages as follows: “Permanent damages are awarded on the theory that the cause of an injury is fixed and that the property will always remain subject to the injury.” 270 Kan. at 473.
Here, the floodgate, which caused water to flood on the Kipps' property, may constitute both a trespass and a nuisance. For example, the floodgate has caused water to invade the property in question since 1982. Moreover, at the same time, the water has interfered with the property owners' use and enjoyment of the land. Because the floodgate and its effects are reasonably certain to continue in the indefinite future, the trespass and nuisance can be considered permanent. Thus, such a nuisance and trespass by their very existence would have caused all the damage they can ever create.
Conversely, the Kipps maintain that the injury—the flooding of their property—is “easily abatable” because “[t]here are numerous other alternatives for alleviating the destruction that results on the Property from the Flood Control Project.” For instance, the Kipps contend that Gypsum can abate the flooding in the following ways: replacing natural water ways upstream to alleviate the flow of water downstream; utilizing an adjacent property owned by Gypsum as a retention pond; or expanding the existing dike system.
Even if the flooding of the Kipps' land is abatable in theory, the flooding arguably is not abatable in practice. For example, Gypsum investigated several different projects before it decided to construct the floodgate as part of its flood control project. After Gypsum rejected the implementation of the Hillside drainage project, it explained part of its reasoning for not doing so. In a letter addressed to the Kansas Secretary of Transportation, the mayor of Gypsum stated that “[c]onsidering the poor financial state of the city and the lack of available funds in the future, the council agreed that it was impossible to meet the ever-increasing costs associated with the [Hillside drainage project].” Based on these facts, the Kipps' argument that the flooding of their land is abatable hinges on the availability of funds to complete one or more of the suggested alternatives. Kansas municipalities should not be required to undertake expensive structural changes to their flood control system when a citizen suggests a change to the system. Simply because Gypsum decided to install the floodgate as part of their flood control project instead of other alternatives, this does not necessarily mean that the flooding of the Kipps' land is abatable.
Indeed, the permanency of the floodgate as part of the flood control project supports the finding that the Kipps' damages are permanent. Here, Gypsum examined several alternative projects. After Gypsum rejected those alternative projects, it decided to install the floodgate. Gypsum also rejected changing the project through its refusal to implement the Hillside drainage project on multiple occasions. Thus, it was highly unlikely that Gypsum would have made any structural changes to its flood control system since it had denied those requests in the past. In other words, the cause of the Kipps' injury is fixed and their property will always be subject to the injury. Consequently, we determine that the trial court properly concluded that the nature of the Kipps' damages caused by the floodgate were permanent.
Inverse Condemnation and the Applicable Statute of Limitations
Moreover, regardless of whether the Kipps' injuries are temporary or permanent, the Kipps' success on appeal depends on the nature of their claims raised below. In Hiji v. City of Garnett, 248 Kan. 1, 804 P.2d 950 (1991), our Supreme Court held that the statute of limitations under K.S.A. 60–507 applies to inverse condemnation claims, i.e., inverse condemnation claims are required to be brought within 15 years from the date the cause of action accrued. The nature of the Kipps' claims raised below is important. We are guided in this inquiry by the Dougan decision. The underlying facts are as follows: Frank Dougan owned land located between the Kansas River and Silver Lake in Shawnee County, Kansas. Dougan's land had flooded five times between 1951 and 1993. In July 1993, approximately 18 inches of rain fell in the area, which was served by a nearby drainage system. Dougan closed his floodgate to protect his property from flooding. Even so, a breach developed in the levee along the Kansas River upstream from Dougan's property, which caused it to flood.
On April 12, 1995, Dougan sued the drainage system operator (DSO) for negligence, trespass, and nuisance claims based on the July 1993 flood damage. Dougan requested compensatory damages, damages for loss of crops, damages for his levee system, and a decrease in his property value. 270 Kan. at 470–71. The DSO argued that Dougan's claims were barred by the 15–year statute of limitations of K.S.A. 60–507, which provides: “No action shall be maintained for the recovery of real property or for the determination of any adverse claim or interest therein, not provided for in this article, after fifteen (15) years from the time the cause of action accrued.” 270 Kan. at 477.
On appeal, the Dougan court held, in part, that Dougan's damages were temporary and that the 15–year statute of limitations under K.S.A. 60–507 did not apply to the facts. 270 Kan. 477–78. The Dougan court reasoned:
“Here, the [DSO] is apparently asserting that it has acquired the right to flood Dougan's property because the flooding has existed for more than 15 years. However, [K.S.A. 60–507] is inapplicable to this case because the [DSO] has not asserted it obtained a property right in Dougan's land, nor has an inverse condemnation action for taking of land been brought by Dougan against [DSO].” 270 Kan. 477–78.
In this case, both parties agree that the 15–year statute of limitations under K.S.A. 60–507 applies. Although not raised in the Kipps' petition, the trial court's pretrial order raised the following question under the heading “Issues of Law”: “Are the owners of 8240 E. Highway K–4 entitled to restitution or compensation for the use limitations and the damage resulting from the Gypsum Flood Control Project?” Although neither the Kipps' petition nor pretrial order used the magic words “inverse condemnation,” the issues of law contained in the pretrial order supports the conclusion that an inverse condemnation claim was raised.
For example, Kansas courts follow the rules of notice pleading, and K.S.A. 60–208(a)(1) merely requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Montoy v. State, 275 Kan. 145, 148, 62 P.3d 228 (2003). Under Kansas' notice-type pleading, the petition is not intended to govern the entire course of the case. Rather, the ultimate decision as to the legal issues and theories on which the case will be decided is made in the pretrial order. Halley v. Barnabe, 271 Kan. 652, 656–57, 24 P.3d 140 (2001). Specifically, pretrial orders are used “ ‘to eliminate the element of surprise from trials and to simplify the issues and procedure by full disclosure to all parties of the anticipated evidence, and factual and legal issues, and to consider “ ‘[s]uch other matters as may aid in the disposition of the action.’ “ “ McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 18–19, 61 P.3d 68 (2002). “The pretrial order ... controls the course of the action unless modified to prevent manifest injustice.” 275 Kan. at 18–19.
Here, the pretrial conference order raised the inverse condemnation issue in its issues of law section. Ordinarily, eminent domain proceedings are initiated by the condemning authority to determine the extent of the property taken and the compensation due under the Eminent Domain Procedure Act (EDPA), K.S.A. 26–501 et seq. , and the United States Constitution. See, e.g., Miller v. Glacier Development Co., 284 Kan. 476, 499, 161 P.3d 730 (2007). But when private property has been taken for public use without the initiation of formal condemnation proceedings by the government, inverse condemnation proceedings are available to the party having a property interest. Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007); see Nat'l Compressed Steel Corp. v. Unified Gov't of Wyandotte County/Kansas City, 272 Kan. 1239, 1245, 38 P.3d 723 (2002) (inverse condemnation action “available only where private property has been actually taken for public use without formal condemnation proceedings and it appears that there is no intention or willingness of the taker to bring such proceedings”).
The trial court's pretrial order states that the Kipps maintained that they were entitled to compensation because of the “use limitations and the damage resulting from the Gypsum Flood Control Project.” In other words, the Kipps argued that they were entitled to just compensation because Gypsum took their land when the floodgate was installed. Thus, the trial court's pretrial order indicates that the Kipps raised an inverse condemnation claim below.
Moreover, Gypsum's motion for summary judgment framed the Kipps' claim as one of inverse condemnation, and the Kipps did not disagree with Gypsum's assessment below or on appeal. In fact, the Kipps' response to Gypsum's summary judgment motion included a section entitled “Plaintiffs' inverse condemnation claim is not barred by the statute of limitations.” In that section, the Kipps' stated: “To the extent that Gypsum's flood control project altered a natural or artificial watercourse, the Kipps do not dispute that K.S .A. 12–635 would apply and that the applicable statute of limitations for condemnation or inverse condemnation is fifteen (15) years under K.S.A. 60–507.”
The 15–year statute of limitations under K.S.A. 60–507 applies here and the Kipps' inverse condemnation claim is barred under that statute of limitation. Gypsum's flood system was completed in early 1982. The property has been subject to ponding since the completion of the floodgate, and the previous owners of the property had experienced ponding since 1982. The Kipps did not file their suit in this case until 2009, well after the 15–year statute of limitations under K.S.A. 60–507 had run. Consequently, the Kipps' inverse condemnation claim is barred by the statute of limitations under K.S .A. 60–507.
Nevertheless, the Kipps argued, below and on appeal, that the 15–year statute of limitations under K.S.A. 60–507 did not begin to run until 1996 when Gypsum rejected the implementation of the Hillside drainage project for a second time. The Kipps' argument is unpersuasive. Indeed, the Kipps do not cite any authority for their position that the 15–year statute of limitations does not begin to run until a municipality has issued a final rejection for an alternative flood project. As Gypsum correctly points out:
“Not only would such a holding be contrary to the law, but it would, in effect completely eliminate the statutes setting the time limitation on inverse condemnation claims. Under [the Kipps'] requested holding, anyone can avoid the statute of limitations by simply asking a city to reverse a long ago taking and then demand the right to bring a claim for the rejection of that request.”
Gypsum's argument is persuasive.
Because the Kipps' 2009 suit was filed more than 15 years after Gypsum completed the flood control project, their inverse condemnation claim is barred by the statute of limitations under K.S .A. 60–507.
Statute of Repose
Assuming arguendo that the statute of limitations under K.S.A. 60–507 does not bar the Kipps' inverse condemnation claim, we must consider the trial court's holding that the statute of repose barred their claims. The trial court's holding requires this court to interpret the applicability of the statute of repose. Interpretation of a statute is a question of law, over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
Statutes of limitations and statutes of repose express distinct concepts under the law. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 662, 831 P.2d 958 (1992); see Martin v. Naik, 43 Kan.App.2d 591, 595–97, 228 P.3d 1092 (2010), rev. granted on other grounds 291 Kan. 911 (2011) (pending). A statute of limitations is remedial and procedural, while a statute of repose is substantive. Harding, 250 Kan. 655, Syl. ¶¶ 6, 7. A statute of limitations creates a procedural barrier to bringing an action after a stated period of time. Once the time period in a statute of limitations has expired, the claim still exists, but the plaintiff is barred from obtaining any relief. Because the statute of limitations is procedural in nature, it may be waived by a defendant who fails to assert it. Conversely, a statute of repose entirely extinguishes the cause of action after the passage of time even if the cause of action has not yet accrued. See Four Seasons Apts. v.. AAA Glass Service, Inc., 37 Kan.App.2d 248, 251–52, 152 P.3d 101 (2007).
The statute of repose applicable to tort actions involving the flooding of land caused by the construction of a public improvement is K.S.A. 60–513(b). See Dougan, 270 Kan. 468, Syl. ¶ 5.K.S.A. 60–513(b) states:
“Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) 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 an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
The Kipps maintain that their tort claims are not barred by the statute of repose because “limiting the City's liability to 10 years from 1982 would in essence give the City free reign after 1992 to make disastrous changes to or neglect repairs for the Flood Control Project without fear of liability.” The Kipps' argument is flawed. We draw guidance from Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999). In Klose, a child was injured during a tennis tournament when he ran into a concrete wall next to the court at the defendant's racquet club. The plaintiff brought personal injury claims against the club, arguing that the wall was placed too closely to the court under United States Tennis Association rules. Our Supreme Court ruled that the claims were barred by the statute of repose under K.S.A. 60–513(b) because more than 10 years had lapsed between the wall's construction in 1974 and the plaintiff's 1994 injury. 267 Kan. 164, 172–74.
In making its ruling, the Klose court concluded that because the act giving rise to the cause of action was the defendant's alleged negligence for placing the tennis court too near a wall, which occurred well outside the limit set by the statute of repose, the cause of action was barred. Our Supreme Court has consistently followed the Klose court's ruling and defined the defendant's wrongful act as the date of the alleged negligent installation, construction, or demolition. See Kerns v. G.A.C., Inc., 255 Kan. 264, 875 P.2d 949 (1994) (plaintiffs negligence claims were barred by statute of repose because more than 10 years lapsed between installation of fence in 1968–1969 and plaintiffs 1990 injury); Dobson v. Larkin Homes, Inc., 251 Kan. 50, 832 P.2d 345 (1992) (plaintiffs claims against builder for negligence and against insurer for wrongful refusal to pay on loss claim were barred by statute of repose because more than 10 years elapsed between construction of home in 1972 and plaintiff's claim in 1990); Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 690–700, 829 P.2d 578 (1992) (Admire Bank's property damage claim against City of Emporia was barred by statute of repose because City's wrongful act of negligent demolition of party wall in 1970 occurred more than 10 years before bank's purchase of property in 1990); Four Seasons, 37 Kan.App.2d at 250–51 (defendant's wrongful act under K.S.A. 60–513[b] occurred during defendant's 1993 installation of new doors on plaintiff's apartment building; therefore, plaintiff was deprived of remedy by statute of repose before it discovered that doors did not adhere to building code requirements in 2005).
In this case, the floodgate was completed in early 1982, and it is undisputed that the previous owners of the Kipps' property regularly experienced ponding after the installation of the floodgate. Thus, the Kipps' property has been subject to ponding for more than 25 years. Because the previous owners of the property have experienced ponding on their property since the installation of the floodgate, the fact of the injury would have become reasonably ascertainable between 1982 and 1985. The Kipps failed to controvert this fact in their response to Gypsum's summary judgment motion. Because the Kipps' property has been subject to ponding since the early–to–mid–1980s, K.S.A. 60–513(b) would have extinguished their tort actions after the passage of 10 years even though their cause of action did not accrue until 2009. Dougan, 270 Kan. at 478. (“A statue of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not yet have accrued.”) Consequently, with regard to the installation of the floodgate, the statute of repose barred the Kipps' tort actions.
For the foregoing reasons, the Kipps' tort claims involving Gypsum's installation of the floodgate are barred under the statute of repose contained in K.S.A. 60–513(b). Because we have determined that the statute of limitations and the statute of repose bar the Kipps' claims regarding the installation of the floodgate, we need not address the remaining arguments involving the floodgate.
The Kipps' Negligence Claim for Maintenance of the Dike
But a finding that Gypsum was entitled to summary judgment under the statute of limitations and the statute of repose does not end our analysis. Indeed, our analysis applies only to the trial court's decision regarding the installation of the floodgate. Next, we must consider if the trial court properly granted Gypsum's summary judgment motion based on the Kipps' claim that Gypsum was negligent in allowing the dike to be tilled over by farmers.
Because our standard of review regarding summary judgment motions was stated earlier, we will not repeat it again.
During oral argument, Gypsum argued that it was entitled to summary judgment as a matter of law under Kipps' contention of negligence because the Kipps' had failed to prove causation. Gypsum has made the same argument in its brief, stating:
“The only evidence in the record is that, during the flood in April of 2009, the water that carried debris onto the [Kipps'] property came out of the banks of the creek before it ever got to the dike of which plaintiffs complain. Water did not wash over the dike and onto their property as they alleged; the volume of water on their property was not affected by the tilled dike. Therefore, the failure to maintain the dike is not the cause of the injury complained of and summary judgment is appropriate.”
In addition, Gypsum made substantially similar causation statements under the statement of facts section of its summary judgment motion. Those statements were controverted by the Kipps below.
Summary judgment should be granted with caution in negligence actions. Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). Nevertheless, summary judgment is proper in a negligence action if the defendant shows there is no evidence indicating negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). Summary judgment is also proper in a negligence action if the only questions presented are questions of law.
Here, summary judgment was improper because the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits showed that there was a genuine issue of material fact regarding the Kipps' negligence claim. Gypsum's motion for summary judgment contains the Kipps' allegation that “50% of the flooding in the April event was a result of the gate and 50% a result of the tilled down dike.” The Kipps do not controvert this fact in their response to Gypsum's motion. Moreover, the Kipps' allegation that a portion of their damage was caused by the tilled down dike was contained in Donald's Kipp's deposition. There, the following exchange occurred between Donald and counsel:
“[COUNSEL]: In your own mind, have you determined what percentage of the total problem is created by each of these three factors?
“[DONALD KIPP]: Somewhat, yes.
“[COUNSEL]: And what's your opinion in that regard?
“[DONALD KIPP]: That the ponding on my property is due to the flood gate and not having proper drainage, and the original in [April] of '09, I believe it was, that was partially probably 50 percent due to the missing dike.
“[COUNSEL]: And how much of the remaining 50 percent did you attribute to the gate versus the property to the west?
“[DONALD KIPP]: I don't think that the waterway would have helped a whole lot during that incident, for the property to the west of me[.]
“[COUNSEL]: So you basically 50–50 [ sic ], the gate and the dike?
“[DONALD KIPP]: Maybe 10 percent to the people to the west.”
The amount of damage attributable to the tilled down dike is a question of fact. Although Gypsum might be able to show that none of the Kipps' damages were caused by the tilled down dike, this is not a decision we can make based on the record. Indeed, a similar argument was raised by Gypsum below and directly controverted by the Kipps. Because a genuine issue of material fact existed regarding the causation surrounding the Kipps' negligence claim, the granting of summary judgment on this claim was improper.
Although Gypsum has raised other arguments to support its position that it was entitled to summary judgment under the Kipps' negligent maintenance claim, these arguments are not persuasive. First, the statute of limitations does not bar the Kipps' negligence claim. The statute of limitations applicable to torts actions involving the flooding of land caused by the construction of a public improvement is 2 years under K.S.A. 60–513(a)(4). See Isnard v. City of Coffeyville, 260 Kan. 2, 5, 917 P.3d 882 (1996). Here, the Kipps' negligent maintenance claim would not have been barred by K.S.A. 60–513(a)(4) because their land was flooded in April 2009, and they filed suit for negligence on March 15, 2010, inside the 2–year limitation bar.
The record is unclear as to when the dike actually was tilled over. It is quite obvious that this is a question of fact to be determined by the trier of fact. Thus, there is a genuine issue of material fact that precludes summary judgment on this issue.
Second, the statute of repose does not bar the Kipps' negligence claim either. The statute of repose applicable to tort actions involving the flooding of land caused by the construction of a public improvement is K.S.A. 60–513(b). See Dougan, 270 Kan. 468.K.S.A. 60–513(b) states:
“Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) 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 an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
Unlike the Kipps' claims regarding the floodgate, which are barred by the statute of repose, the act giving rise to their negligence action was Gypsum's alleged negligence in operating and maintaining the flood control project. In particular, the Kipps maintain that Gypsum was negligent in allowing part of the project—a dike—to be tilled over by farmers. Here, the act giving rise to the cause of action, Gypsum's alleged negligence in operating and maintaining the dike, first caused substantial injury in 2009 when the Kipps' property was flooded. Thus, the statute of repose does not bar the Kipps' negligence claim.
Moreover, a finding that the statute of repose does not bar the Kipps' negligence claim is supported by an argument contained in Gypsum's brief. When countering the Kipps' argument against the applicability of the statute of repose, Gypsum stated the following: “The statute of repose bars a claim ten years after the ‘act giving rise to the cause of action.’ It does not bar new claims based on new acts after it has run as to previous acts. In this case, the act complained of is the installation of the floodgate, which occurred in 1979, well more than ten years before this case was filed.” As the Kipps' negligence claim is based on an act other than the installation of the floodgate project, it is a new act that is not barred by the statute of repose. Consequently, the statute of repose does not bar the Kipps' negligence claims.
Third, the Kipps' negligence claim is not barred by discretionary immunity. A “governmental entity is not immune from liability caused by negligence independent of design, where that independent negligence is a concurring, proximate cause of the injury.” Dunn v. U.S.D. No. 367, 30 Kan.App.2d 215, 229, 40 P.3d 315,rev. denied 274 Kan. 1111 (2002). Here, the pretrial order stated that the Kipps contended that Gypsum was negligent in its operation and maintenance of the flood control project, which included the dike. Those allegations were independent of the design of the flood control project. Therefore, design immunity does not bar the Kipps' negligence claim here.
For the foregoing reasons, the trial court erred in granting Gypsum's summary judgment motion under the Kipps' claim that Gypsum was negligent for allowing a dike to be tilled over.
Affirmed in part, reversed in part, and remanded for trial.