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Edwards v. Anderson Engineering

September 7, 2007


Appeal from Crawford district court; DANIEL L. BREWSTER, judge.


1. An appendix to an appellate brief is limited to containing extracts from the record on appeal and cannot serve as a substitute or addition to the record. The court will not consider appended items which are not found in the appeal record.

2. A reply brief is permitted for the sole purpose of rebutting new material contained in the appellee's or cross-appellee's brief and must make specific reference to the new material being rebutted. A reply brief shall not duplicate or include, except by reference, any statements, arguments, or authorities already made or included in the preceding briefs.

3. An employee receiving workers compensation benefits cannot maintain a civil action against his or her employer or co-workers for damages arising from the accident for which workers compensation benefits are being paid. Nevertheless, if the employee's injury or death was caused by a third party with legal liability, the injured worker or his or her successors in interest shall have the right to collect workers compensation benefits and also pursue civil damages against the third party.

4. Under K.S.A. 2006 Supp. 44-501(f), a third party shall have statutory immunity from a worker's action arising from a construction worksite accident if: (1) The person or entity claiming immunity is a construction design professional or an employee of a construction design professional; (2) the construction design professional had been retained to perform professional services on a construction project; (3) the worker's injury resulted from his or her employer's failure to comply with safety standards on the construction project; (4) compensation for the injury is recoverable under the Workers Compensation Act; (5) the design professional claiming immunity did not, by contract, specifically assume responsibility for safety practices; and (6) the construction design professional's liability does not arise from the negligent preparation of design plans or specifications.

5. The interpretation of a statute, including the determination of the applicability of statutory terms and phrases to undisputed facts, is a question of law to be decided by the court; such legal questions are not submitted to the jury.

6. An appellate court is not bound by the district court's interpretation of a statute, but rather the appellate court conducts a de novo review of the statute. Thus, an appellate court can analyze the applicability of a statute even though the district court declined to do so.

7. Summary judgment is to be granted with caution in a negligence case. Where reasonable minds could differ as to the conclusions to be drawn from the evidence, summary judgment must be denied.

The opinion of the court was delivered by: Johnson, J.


Anderson Engineering, Inc. (Anderson) files this interlocutory appeal, challenging the denial of its summary judgment motion in a wrongful death action filed by the wife and children of William Edwards, who died in a construction accident. Anderson claims immunity as a construction design professional under K.S.A. 2006 Supp. 44-501(f). Finding that the district court mischaracterized legal questions as disputed issues of fact, but that the district court's denial of the summary judgment motion, as presented, was correct, we affirm.

Originally, the City of Pittsburg hired Wilson & Company, Inc. to design a storm sewer and drainage improvement project. Crossland Heavy Contractors, Inc. (Crossland) won the construction bid and used large, elliptical-shaped concrete pipe manufactured by Moores Manufacturing, Inc. (Moores) to build the system. Crossland completed the project in September 2001.

In January 2002, Wilson notified Crossland that it would need to replace some of the concrete pipes that had failed. Crossland replaced the pipe and put the extracted failed pipe on a vacant lot that had been prepared as a materials storage and staging area for the original construction project. The replacement project was completed on March 29, 2002.

Crossland retained Anderson to test the failed pipe to determine whether it complied with the project specifications for wire reinforcement and strength. The parties did not memorialize their agreement in writing.

Anderson needed the large pipes cut into sections to conduct its testing, and Crossland committed to cut the pipe. Upon being notified the pipe cutting would occur on April 1, 2002, an Anderson engineer went to the storage site and conversed with Crossland's project superintendent. Crossland proposed to crush the pipe with heavy equipment, but the Anderson engineer wanted the pipe cut in order to have clean edges for testing. The engineer specified the location of the desired cut lines by marking on the pipe with a yellow marker, which included a line that extended lengthwise on the top of the pipe.

Crossland commenced cutting the pipe, but when the Anderson engineer determined the process would take some time, he left the site. Edwards, a Crossland employee, stood on top of the concrete pipe to effect a lengthwise cut. At some point, shortly after the Anderson engineer had left, the pipe split lengthwise and rolled outward, causing Edwards to fall and be crushed when the pipe rolled back.

The Edwards family initially filed suit against Anderson and Moores, the pipe manufacturer. As an employee of Crossland, Edwards was covered by Crossland's workers compensation policy, and benefits were paid to his survivors. The district court granted a motion by Crossland and Zurich North America to intervene in the wrongful death action. The district court granted a motion to amend the petition to join Wilson, the original project engineer, as a party defendant. Subsequently, the district court granted summary judgment in favor of Wilson and Moores, and both of those defendants were dismissed with prejudice.

However, on Anderson's summary judgment motion, the district court found that "material issues of fact exists [sic] as to whether K.S.A. 44-501(f) is applicable and therefore Summary Judgment is improper." The court went on to specify that:

"A jury must determine if: 1) Defendant Anderson is a construction design professional; 2) the testing of the failed concrete pipe was on a construction project; and 3) that Defendant Anderson's activity in testing and drawing on the pipe constitutes negligent preparation of design plans or specifications."

Anderson requested that the district court certify the summary judgment denial for an interlocutory appeal, arguing that the applicability of the immunity statute is a question of law for the judge to decide, rather than a jury question. In its memorandum decision granting Anderson permission to seek an interlocutory appeal, the district court stated:

"The court finds that whether applicability of the immunity statute is a question of fact for the jury or a question of law to be determined by the court is in itself a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

The Court of Appeals granted Anderson leave to file the interlocutory appeal. The case was transferred to this court pursuant to the authority of K.S.A. 20-3018(c).


We pause to comment on two of our rules of appellate practice. We do so not to chastise or embarrass competent counsel in this appeal, but rather to remind the practicing bar of these frequently violated rules.

The appellees' brief is accompanied by a voluminous appendix, albeit not all of the appended documents are contained in the record on appeal. Appendices can be most helpful to appellate jurists and members of their staff. However, an appendix is limited to containing extracts from the record on appeal and cannot serve as a substitute for the record itself. Supreme Court Rule 6.02(f) (2006 Kan. Ct. R. Annot. 36); Supreme Court Rule ...

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