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Bonnette v. Triple D Auto Parts Inc.

Court of Appeals of Kansas

December 15, 2017

Christina Bonnette, Appellant,
v.
Triple D Auto Parts Inc., Appellee.

         SYLLABUS

         1. The familiar standards for summary judgment are stated.

         2. Subsection (b) of K.S.A. 60-513, the statute of limitations applicable to tort actions, sets forth a 10-year statute of repose.

         3. A statute of repose limits the time during which a cause of action can arise and usually runs from the act of the alleged tortfeasor. A statute of repose abolishes the cause of action after the passage of time, even though the cause of action may not have yet accrued. By contrast, a statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time.

         4. The 10-year period of the statute of repose found in K.S.A. 50-513(b) begins to run when the defendant completes the last act giving rise to the cause of action. Thereafter, once the 10-year period of repose has expired, claims against the defendant are extinguished even if an action has not yet accrued and even if the plaintiff has not yet been injured.

         5. A landowner or proprietor has an ongoing duty to warn of nonopen and nonobvious dangerous conditions on the premises. Under the facts presented, the last day the defendant could have breached this duty was the day the plaintiff was injured. Accordingly, the plaintiff's claim for failure to warn was not barred by the statute of repose.

         6. A landowner or proprietor owes a duty of reasonable care to all visitors. But a landowner or proprietor generally has no duty to warn of or to make safe any dangers that are known, open, or obvious to a visitor. Thus, the duty to warn does not apply when a visitor has knowledge of a dangerous condition but voluntarily subjects himself or herself to the danger by patronizing the establishment after learning of the danger. Knowledge of the dangerous condition may be imputed and need not be actual knowledge. The test is whether a reasonable person in the situation would have recognized the danger.

         7. A landowner or proprietor nevertheless owes a visitor a duty to warn of a danger on the premises, even if it is open and obvious, if the visitor is likely to be distracted when confronted with the dangerous condition and is, therefore, (1) not likely to discover the dangerous condition, (2) likely to forget the presence of the dangerous condition, or (3) not likely to protect against the dangerous condition. Thus, the landlord or proprietor must warn of dangerous conditions when the landowner or proprietor knows or has reason to know that the plaintiff will be distracted due to actions, advisements, or requests by the landowner or proprietor.

         Appeal from Hamilton District Court; Wendel W. Wurst, judge.

          Matthew L. Bretz, of Bretz & Young, L.L.C., of Hutchinson, for appellant.

          Terry J. Malone, of Dodge City, for appellee.

          Before Schroeder, P.J., McAnany and Powell, JJ.

          McAnany, J.

         Christina Bonnette appeals the district court's decision granting Triple D Auto Parts' motion for summary judgment. In its motion, Triple D asserted that Bonnette's personal injury claim was barred by the statute of repose because the dangerous condition that caused her injuries had been present for over 10 years. In granting Triple D's motion for summary judgment, the district court reasoned that Bonnette was injured over 20 years after Triple D completed the last act for which it could be held liable so the statute of repose barred the claim.

         Facts

         Bonnette's person injury claim arises from an accident that occurred while she was patronizing Triple D's store in November 2013. Triple D purchased the store in 1990. The building has a single entrance and exit for customers. The exit has a single step down to the sidewalk. The step is approximately four inches tall, is the same color as the adjacent sidewalk, and is not marked with any type of a warning. The owner of Triple D, Jim Dowell, admitted the step is a hazard to anyone that does not know the step ...


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