Opinion
Case No. 01-1066-JAR
November 21, 2002
MEMORANDUM AND ORDER PARTIALLY GRANTING SUMMARY JUDGMENT
This is a negligence action in which Plaintiff alleges personal injuries as a result of a fire at Hays Medical Center. Before the Court is Defendant HBE Corporation's Motion for Partial Summary Judgment (Doc. 43). Defendant HBE Corporation (HBE) requests the Court to conclude that Hays Medical Center breached its duty under the construction contract (Construction Contract) between HBE and Hays Medical Center, Inc., to inform HBE of changes Hays Medical Center made to the construction work sites and structures, including the penetration of a firewall.
UNCONTROVERTED FACTS
The following relevant facts are either uncontroverted or, if controverted, construed in the light most favorable to Plaintiff as the non-moving party.
On February 25, 1997, HBE and Hays Medical Center entered into a Construction Contract for the completion of certain construction and renovation work at the Hays Medical Center. The Construction Contract, by its own terms, was to be governed by Kansas law. The Construction Contract, as written and signed by HBE and Hays Medical Center, "represents the entire and integrated agreement between the parties hereto and supercedes all prior negotiations, representations, or agreements."
Hays Medical Center undertook a duty to make available to HBE "the construction documents of any existing facility . . . and other data, drawings and documentation which identifies the actual conditions of any existing facility as of the date of this Contract." Under the Construction Contract, the parties agreed that HBE would rely upon Hays Medical Center to provide "data, drawings and documentation as describing the conditions of any existing facility." In the Construction Contract, Hays Medical Center explicitly "represents and warrants that it has provided the Architect and HBE with all data, drawings and documentation necessary to define such existing systems or equipment and any modifications thereto." Hays Medical Center explicitly agreed to furnish all information or services under its control "with reasonable promptness to avoid delay in the orderly progress of the Work." Hays Medical Center reserved the right to perform work related to the project "with [its] own forces, and to award separate contracts in connection with portions of the Project or other Work on the site." For any such work performed by Hays Medical Center or its agents, Hays Medical Center promised to "provide for the coordination of the Work of [its] own forces and of each separate contractor with the Work of HBE." The parties to the Construction Contract agreed that "[i]f any part of HBE's Work depends for proper execution or results upon the Work of the Owner [Hays Medical Center] or any other separate contractor, HBE shall inspect and promptly report to the Architect and the Owner any apparent discrepancies or defects in such Work." The parties agreed that HBE would not be liable for "damage or loss attributable to the acts or omissions of the Owner or to anyone employed by the Owner or for whose acts the Owner may be liable and not attributable to the fault or negligence of HBE."
The parties to the Construction Contract agreed that HBE would be informed whenever material was installed on the project which "penetrates even one surface of a fire or smoke partition that is in place, either new or existing." When a penetration of any fire or smoke partition occurred, and HBE was properly informed thereof, at the expense of the person or entity which caused the penetration, HBE agreed to "patch and repair the hole and restore the finish in order to provide an airtight joint, using approved safing material to seal around the penetration." Hays Medical Center penetrated an alleged firewall when it, or its agents, installed telephone conduit in an area of Hays Medical Center that was part of the HBE construction work site. Hays Medical Center did not tell HBE that it had penetrated this alleged firewall; a fire resulted, and this lawsuit against HBE was filed by Plaintiff, alleging personal injury as a result of the fire.
CONCLUSIONS OF LAW
Summary Judgment:
Summary judgment is appropriate "if 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 a judgment as a matter of law." In applying this standard, the Court must "view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant." An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." A factual dispute is "material" only if "under the substantive law it is essential to the proper disposition of the claim." If the party bearing the burden of persuasion at trial fails to come forward with sufficient evidence on an essential element of its prima facie case, all issues concerning all other elements of the claim and any defenses become immaterial.
Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993).
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citations omitted).
Id. (citation omitted).
Id. (citation omitted).
Id. (citation omitted).
The moving party "bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law." A movant that does not bear the burden of persuasion at trial need not negate the nonmovant's claim, and may make its prima facie demonstration by simply pointing out the lack of evidence for the nonmovant on an essential element of the nonmovant's claim."
Id. at 670-71 (citation omitted).
Id. at 671 (citation omitted).
If the movant meets this initial burden, "the nonmovant that would bear the burden of persuasion at trial may not simply rest upon its pleadings; the burden shifts to the nonmovant to go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." In order to do this, "the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein."
Id. (citations omitted); see also Fed.R.Civ.P. 56(e).
Id.(citation omitted).
Comparative Fault
Both parties agree that under applicable Kansas law, the interpretation or construction and meaning and legal effect of written instruments, as well as the question of duty, are matters of law exclusively for the court and not questions of fact for determination by a jury.
U.S. Fidelity and Guar. Co. v. Dealers Leasing, Inc., 137 F. Supp.2d 1257, 1259-60 (D.Kan. 2001) (citation omitted); Adams v. Via Christi Reg. Med. Ctr., 270 Kan. 824, 834, 19 P.3d 132 (2001) (citation omitted).
Plaintiff acknowledges that if Defendant prevails on this motion, it may assert a comparative fault claim to the jury. Plaintiff also acknowledges the existence of Hays Medical Center's duty of care under the Construction Contract, but argues that the failure of Defendant to submit evidence to show any breach of that duty eliminates the affirmative defense. Plaintiff argues that there is nothing in the record to indicate that the penetrated wall (actually a pre-existing basement wall) was a "firewall" or a "smoke partition."
Defendant has provided additional testimony from a Supervisor of HBE expressly identifying the "wall in question" as a firewall. Mr. Arent, Supervisor for HBE, states that "[t]he wall between the existing telephone room and the new telephone room was a firewall or smoke partition, as contemplated by the construction contract between HBE and Hays Medical Center." Plaintiff has not provided any evidence to controvert this statement. Therefore, it is uncontroverted that Hays Medical Center, or its agents, penetrated a "firewall."
Affidavit of Roland J. Arent, Jr., Exhibit G to Defendant's Reply (Doc. 52). The Court has discretion to permit supplemental affidavits it finds useful for summary judgment determinations. Lighton v. University of Utah, 209 F.3d 1213, 1227 (10th Cir. 2000); Fed.R.Civ.P. 56(e).
Affidavit of Roland J. Arent, Jr., at ¶ 9.
Plaintiff also claims that Defendant knew that the telephone conduit had been installed through the existing wall because the six-inch diameter conduit was open and obvious to Defendant due to its size and the location of spotters in the room where the conduit was located. However, the testimony is clear that Defendant did not know about the conduit. Cecil Johnson responded to questions as follows:
Q. Looking back at Exhibit 6, you're telling me that you didn't recall there being any conduit at all through the new telephone room wall? A. That's correct.
April 4, 2002 Deposition of Cecil A. Johnson, p. 42, l. 9-13.
He further responded to questions by indicating "not knowing that that hole existed," "if I had seen a six-inch conduit coming through there" and "[h]ad I seen a six-inch pipe in there . . . we would have taken precautions there." Mr. Arent also testified that with regard to the plywood barrier that was removed from the wall between the existing telephone room and the new telephone room when the conduit was installed, he "had no prior knowledge that it was removed." Plaintiff has failed to controvert the fact that Defendant was not aware that Hays Medical Center had penetrated the wall.
Id. at p. 55, l. 21; p. 42, l. 19-21; p. 43, l. 7-12.
Deposition of Roland J. Arent, Jr. (Exhibit E), p. 83, l. 14-15.
Defendant requests partial summary judgment as to its claim that Hays Medical Center had a contractual duty to inform HBE of any penetration it made to any firewalls. Hays Medical Center breached that duty by failing to inform HBE that Hays Medical Center penetrated a firewall to install communication conduit and wiring. The Court finds that the motion should be granted.
IT IS THEREFORE ORDERED BY THE COURT that Defendant HBE Corporation's Motion for Partial Summary Judgment (Doc. 43) shall be GRANTED.
IT IS SO ORDERED.