The opinion of the court was delivered by
The plaintiffs appeal from an order of the district court
granting summary judgment to certain defendants in an action for
the personal injury and wrongful death of Ira and
Augustus Pettis. Mr. and Mrs. Pettis were killed when a church
collapsed on their residence. Several of the defendants settled
with the plaintiffs and the non-settling defendants were
subsequently granted summary judgment. We affirm.
As this is an appeal from the granting of summary judgment, the
facts will be stated in some detail.
On the evening of August 8, 1985, the Bethel A.M.E. Church
(Bethel Church) at 411 Kiowa, Leavenworth, Kansas, partially
collapsed on the residence of Ira and Augustus Pettis, killing
both of them. The Pettis residence was located to the west of the
church and the church parsonage was located to the east of the
church. Apparently there was not much space between the two
residences and the church building.
The plaintiffs include the heirs-at-law of Mr. and Mrs. Pettis,
and James E. Gooch, as administrator of the estates of Ira Pettis
and Augustus Pettis. The plaintiffs' petition asserted claims for
trespass and negligent failure to warn against Church Mutual
Insurance Company (CMIC), Dressler Engineers (Dressler), GAB
Business Services, Inc. (GAB), and Gerald L. Albright. Plaintiffs
also asserted a claim for trespass against the Bethel Church and
a claim for negligent failure to warn against the City of
Leavenworth (City). In their first amended petition, the
plaintiffs added a claim of negligent failure to warn against
Bethel Church and named African Methodist Episcopal Church, Inc.;
M.D. Cooper, d/b/a M.D. Cooper & Associates Consulting Engineers
(Cooper); Julius David Kaaz (Kaaz); and Julius Kaaz Construction
Co., Inc. (Kaaz, Inc.), as additional defendants. Plaintiffs
asserted claims of trespass and negligent failure to warn against
each of the additional defendants. Apparently, the plaintiffs
brought a separate action against W.F. Mothersbaugh, d/b/a W.F.
Mothersbaugh & Son, Inc. (Mothersbaugh), and the two cases were
consolidated in the district court.
The Bethel Church, CMIC, African Methodist Episcopal Church,
Inc., Cooper, Dressler, and Mothersbaugh settled with the
plaintiffs, and the actions against them were dismissed. Thus,
plaintiffs' appeal concerns only defendants Kaaz, Kaaz, Inc., GAB
and its employee Gerald L. Albright, and the City.
The voluminous record in this case, consisting of thirty-three
volumes, includes one thousand four hundred forty-seven pages
of pleadings, four partial transcripts of various court hearings,
and twenty-six discovery depositions. The trial court, in ruling
upon the motions for summary judgment filed by Kaaz, Kaaz, Inc.,
GAB, Albright, and the City, made one hundred eighty-five
findings of fact. With this record before us, we turn to the
events leading to the collapse of the church building and the
filing of this action.
In June of 1985, Rev. Warren, pastor and president of the board
of trustees of the Bethel Church, noticed that the east wall of
the church was pulling away from the ceiling and informed Tom
Bragg, Staff Johnson, and Landon Jackson, the other members of
the church board of trustees. Bragg suggested contacting Kaaz,
president of Kaaz, Inc., which had done some repair work at the
church in prior years. Kaaz inspected the church and found
problems with the ceiling truss system and a separation of the
east wall from the ceiling. Kaaz then informed Bragg and Johnson
that "they would have to get the services of a structural
engineer and analyze the truss system to come up with a design
for possible repair or replacement" and indicated the church
building needed prompt attention.
On June 11, 1985, the Bethel Church filed a claim with CMIC,
its property damage insurance carrier, claiming the church had
been damaged by wind. On the same date, CMIC contacted the
Overland Park offices of GAB "and requested GAB to investigate
and adjust the property damage claim made by the Bethel Church on
behalf of and for Church Mutual Insurance Company." GAB's
business is investigating and adjusting insurance claims for
insurance companies. Defendant Gerald L. Albright, one of GAB's
branch managers, made arrangements with Rev. Warren to inspect
the church property. On June 21, 1985, Albright met with Rev.
Warren. Not knowing what caused the damage, Albright called
Patricia Heller, a claims examiner with CMIC, and recommended
that CMIC hire an engineer to look at the church. After Heller
authorized Albright to obtain an engineer, Albright contacted
Dressler Engineers, which agreed to inspect the church and
prepare a report for CMIC.
Ron Haskey, an architectural engineer with Dressler, and Donald
Dressler inspected the church on June 24, 1985. Kaaz was present
to point out to Haskey what he had observed on his
previous inspection of the church. Haskey determined the church
was "unsafe for human occupancy" and indicated the City should be
The City was notified and David Pennington, the Leavenworth
Public Works Director and City Engineer, inspected the property
on June 24 or 25. He informed one of the church members that he
would have to post the church as unfit for habitation because of
his concern that plaster from the ceiling would fall on someone.
He also informed church officials that they needed to hire an
engineer to determine the necessary repairs which would have to
be completed before they could resume use and occupancy of the
building. The property was posted as unfit for habitation and the
front and east sides of the church were barricaded and roped off.
The church officials were ordered "to repair or remove the
structure within 30 days."
Dressler furnished its written report, dated June 28, 1985, to
GAB for CMIC. The written report stated the church was "hazardous
to human occupancy" and recommended "the immediate shoring of the
east wall and deficient ceiling structure." Further, it stated:
"All work should be conducted under the supervision of a
registered professional engineer." Dressler's report and the
deposition of Donald Dressler further indicate that there was an
immediate danger that the church ceiling would collapse into the
sanctuary. Albright, who received the report on July 1, 1985,
prepared a report for CMIC which included a copy of the Dressler
report. Albright's report stated that the building was dangerous
and indicated that he had recommended to Rev. Warren that the
area between the parsonage and the church building be roped off.
By the time Albright prepared his report, the City had already
barricaded and roped off the church.
On or about July 1, 1985, church trustee Tom Bragg contacted
M.D. Cooper, a friend, and asked Cooper to look at the building
and see what could be done. Cooper is a licensed civil engineer
and he forthwith viewed the property. On either July 2 or July 3,
Cooper informed Bragg that the east wall, being cracked, posed a
hazard to the parsonage and that "repairs had to be implemented
immediately." On July 3, 1985, Cooper prepared a proposal for
designing plans for the shoring and repair of the church,
including the provision of inspection services during repair and
assistance in evaluating the bids the Bethel Church received. In
his proposal, he stated that he would have "complete contract
documents ready to bid six weeks after acceptance of this
proposal (sooner if possible)." Rev. Warren and Bragg accepted
the proposal on behalf of the Bethel Church.
On July 9, 1985, Cooper again inspected the church and drew
plans and tentative bid specifications for the church's repair.
On July 11, 1985, he submitted his plans to the Bethel Church
which had set an August 28, 1985, deadline for bids. Cooper
noted, "Failure is progressing. Time is of the essence." On July
25, 1985, Kaaz, who was interested in bidding on the repairs, met
Cooper at the church property. They discovered that more plaster
from the ceiling had fallen into the sanctuary, and Kaaz informed
church trustees that he was no longer interested in bidding on
the repairs because he did not feel his men would be safe working
On August 1, 1985, Bragg called Cooper and stated he wanted
demolition to be an option in the plans. On August 2, 1985,
William Mothersbaugh, a contractor who church officials had
contacted on July 29 or July 30, inspected the church. On August
5, 1985, Rev. William F. Dancy, a prior pastor of the church,
asked William H. Johnson, an architect, to look at the church.
Johnson noticed the bow in the east wall of the church which
Dancy stated had been there since 1964. Dancy testified that at
least one roof beam had fallen through the ceiling. Johnson
testified that at least one of the roof trusses was one foot or
more below ceiling level. Johnson also testified that "to
appreciate the Church truss system, you would have to be a
structural engineer, not just an engineer."
On August 6, 1985, Mothersbaugh submitted a bid for the repair
work. Church officials had not responded to Mothersbaugh's bid
when the church building collapsed on August 8, 1985, killing Mr.
and Mrs. Pettis.
As indicated earlier, the Bethel Church, CMIC, Dressler,
Cooper, African Methodist Episcopal Church, Inc., and
Mothersbaugh settled with the plaintiffs for a total of $155,000.
GAB and its employee Albright, Kaaz, Inc., and its president and
employee Kaaz, and the City, the remaining defendants, ...