United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This is a personal injury action based upon diversity jurisdiction. This action arises from a collision on June 10, 2011 between plaintiff, who was riding a bicycle on a sidewalk, and a car driven by defendant Michelle Crawford, who was a business visitor exiting a Sonic drive-in restaurant in Newton, Kansas. The restaurant was operated by defendant Sonic of Newton, Inc. ("Sonic"). This case is now before the court upon several motions. The first motion the court shall address is Sonic's motion for summary judgment.
I. SONIC'S MOTION FOR SUMMARY JUDGMENT SHALL BE DENIED.
A. Summary judgment standards
Summary judgment is warranted if the materials on record 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." FED.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa , 480 F.3d 1192, 1197 (10th Cir. 2007).
"Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.... These facts may be shown by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings by themselves." Southway v. Central Bank of Nigeria , 149 F.Supp.2d 1268, 1273 (D.Colo.2001), aff'd, 328 F.3d 1267 (10th Cir.2003).
"Summary judgment is... appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence presented in the motion and response." Southway , 149 F.Supp.2d at 1273. "The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.... Unsupported allegations without any significant probative evidence tending to support the complaint' are insufficient... as are conclusory assertions that factual disputes exist." Id . (interior citations and quotations omitted). The evidence presented must be based on more than mere speculation, conjecture, or surmise to defeat a motion for summary judgment. Rice v. United States , 166 F.3d 1088, 1092 (10th Cir. 1999).
B. Uncontroverted facts
Sonic operates a drive-in restaurant at 1215 North Main Street in Newton, Kansas. The restaurant was built in 1970. In that year, there was no structure on the south adjoining lot at 1201 North Main Street. The restaurant was designed so that traffic would enter the premises through a north driveway, circle around the restaurant, and exit through a south driveway.
Currently, Bud & Steve Auto Service operates a business on the south adjoining lot at 1201 North Main. In 1972, that business constructed a building at that address. The building remains today. The court assumes for the purposes of this order that the south driveway of the Sonic restaurant has always bordered the property where the Bud & Steve Auto Service building sits. Sonic acquired the franchise in 1982 or 1983 and has operated the restaurant ever since. In 2008, the original Sonic building at 1215 North Main Street was torn down and a modernized building was constructed in its place. The design of the location remained mostly but not entirely the same. For the purposes of the motion for summary judgment, the court shall assume that as part of the renovations the south driveway exiting the business was made narrower, but still bordered the property line with 1201 North Main.
On June 10, 2011, plaintiff was riding a bicycle north on a sidewalk heading towards the exit of the Sonic restaurant. Defendant Crawford was driving a vehicle which was exiting the restaurant using the south driveway. Plaintiff collided into the side of defendant Crawford's vehicle and suffered substantial injuries.
Plaintiff had the right-of-way on his bicycle. He was familiar with the sidewalk in front of the Sonic restaurant because he had visited the restaurant on previous occasions and had walked on the sidewalk multiple times. For the purposes of the summary judgment motion, the court shall assume that as plaintiff approached the south driveway on his bicycle, he could not see vehicles beginning to exit Sonic because of the Bud & Steve Auto Service building, and that defendant Crawford could not see plaintiff approach on his bicycle because of the Bud & Steve Auto Service building. There were no warning signs, traffic control signs or mirrors on the Sonic premises prior to the accident in question.
C. The court will not grant summary judgment on the basis of the statute of repose.
Sonic's first argument for summary judgment is that all of plaintiff's claims against it must be dismissed because they are time-barred by Kansas' statute of repose, K.S.A. 60-513. This statute provides in part:
(a) The following actions shall be brought within two years:...
(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated....
(b)... 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.
Sonic contends that the alleged "act giving rise to the cause of action" was the original design of the driveways at the Sonic restaurant and that the exact same conditions existed as early as 1972 and more than ten years before the accident in question in this case.
To determine if the statute of repose is applicable, it must be decided when the "act giving rise to the cause of action" occurred. There appear to be unresolved factual questions which may to relevant to that decision. Sonic tore down its restaurant building in 2008, rebuilt a modernized restaurant building, and may have redesigned its location to some degree, although the south edge of the exit driveway remained along the property line with Bud & Steve Auto Service. There is evidence that in addition to a constructing a new building and awnings, Sonic narrowed the driveways. It may be argued that the redesign of the Sonic location is the act giving rise to the cause of action. There appears to have been a renovation according to new plans, although those plans were similar to the previous design. If it is determined that the act giving rise to the cause of action was the design of the restaurant in 1970, then the statute of repose would apply to some of plaintiff's claims. Here, however, the record is not sufficiently clear for the court to determine upon summary judgment whether the design of the restaurant location in 1970 or the redesign in 2008 was the act giving rise to a cause of action. Plaintiff's citations to various Kansas cases, including Klose v. Wood Valley Racquet Club, Inc. , 975 P.2d 1218 (Kan. 1999), are distinguishable because those cases do not involve renovation, remodeling or redesign to the degree suggested in the record of this case. The court also notes that in Taney v. Independent School District No. 624 , 673 N.W.2d 497 (Minn.App. 2004), the court held that a 10-year statute of repose began to run from date of remodeling, not the date of original construction, even though the alleged hazardous condition was not altered by the remodeling process.
We remark further that the statute of repose would not operate to bar plaintiff's claims of failure to warn and failure to maintain, if the failure to warn or failure to maintain occurred within ten years of the accident and if the failure to warn or maintain gave rise to plaintiff's cause of action. See Dunn v. Unified School District No. 367 , 40 P.3d 315, 320 (Kan. App. 2002)(claim for failure to protect against "ancient premises hazard" is not barred by statute of repose even if the hazard - unsafe plate glass doors - was created more than 10 years before the injury alleged by plaintiff).
In sum, although the court acknowledges that the application of the statute of repose is a question of law, the court cannot decide that question upon the summary judgment record because there are factual uncertainties as to the range or extent of the modernization and redesign of the Sonic location in 2008. In addition, the statute of repose does not apply to plaintiff's claim of a ...