Bonnette v. Triple D Auto Parts Inc.
116578
| Kan. Ct. App. | Dec 15, 2017Background
- Plaintiff Christina Bonnette slipped and fractured her wrist exiting Triple D Auto Parts in November 2013 after missing an unmarked ~4-inch step from the store to the sidewalk.
- Triple D purchased the store in 1990; the entrance/step configuration had existed since the building was built in 1925.
- Bonnette had used the step ≈160 times over 16 years and had just entered the store safely about 10 minutes before the fall.
- Bonnette sued (filed April 2015) for negligence but ultimately abandoned all claims except failure to warn.
- Triple D moved for summary judgment asserting (1) the claim was barred by the 10-year statute of repose (K.S.A. 60-513(b)) and (2) no duty to warn because the hazard was open and obvious.
- The district court granted summary judgment on repose grounds; the court of appeals reversed that ground but affirmed because Triple D owed no duty to warn (condition was open and obvious and no evidence Bonnette was distracted or that Triple D should have anticipated distraction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 10-year statute of repose bars Bonnette's failure-to-warn claim | Repose does not bar a claim based on an ongoing duty to warn; last breach could be at time of injury (2013) | Last act giving rise to liability occurred when Triple D purchased/installed/retained the step (1990 or earlier), so repose expired | Repose does NOT bar failure-to-warn claim because duty to warn is ongoing and last breach could be at time of injury |
| Whether Triple D had a duty to warn of the step | Triple D should have warned because the step was hazardous and she might be distracted when leaving | No duty: the step was open and obvious; Bonnette had prior knowledge from frequent use and there is no evidence of distraction or that Triple D caused/should have anticipated distraction | No duty to warn; condition was open and obvious and no evidence of distraction or foreseeability of distraction by Triple D |
Key Cases Cited
- Armstrong v. Bromley Quarry & Asphalt, Inc., 305 Kan. 16, 378 P.3d 1090 (2016) (summary judgment standard and appellate review)
- Kerns v. G.A.C., Inc., 255 Kan. 264, 875 P.2d 949 (1994) (explains statute of repose concept)
- Klose v. Wood Valley Racquet Club, Inc., 267 Kan. 164, 975 P.2d 1218 (1999) (statute of repose barred claims based on long-standing physical defects)
- Dunn v. U.S.D. No. 367, 30 Kan. App. 2d 215, 40 P.3d 315 (2002) (distinguishes Klose; statute of repose does not bar claims based on ongoing duties like failure to warn)
- Miller v. Zep Mfg. Co., 249 Kan. 34, 815 P.2d 506 (1991) (distraction exception to open-and-obvious rule where defendant's conduct made plaintiff likely to be distracted)
- Wellhausen v. University of Kansas, 40 Kan. App. 2d 102, 189 P.3d 1181 (2008) (knowledge of dangerous condition may be imputed when a reasonable person would recognize the danger)