familiar standards for summary judgment are stated.
Subsection (b) of K.S.A. 60-513, the statute of limitations
applicable to tort actions, sets forth a 10-year statute of
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.
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.
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.
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.
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
from Hamilton District Court; Wendel W. Wurst, judge.
Matthew L. Bretz, of Bretz & Young, L.L.C., of
Hutchinson, for appellant.
J. Malone, of Dodge City, for appellee.
Schroeder, P.J., McAnany and Powell, JJ.
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.
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 ...