Daily Development for Thursday, November 15, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

Here are two “bite size” developments from Kansas.  One is a premises liability case involving a special rule that the editor assumes, but doesn’t know, applies elsewhere.  The second is a pretty standard “shingle wars” case where the violator one because of poor language in the Declaration.  Read and learn:

LANDOWNER LIABILITY; INJURIES TO INVITEES; “SLIGHT DEFECT” RULE:  Kansas refuses to apply “slight defect” qualification to duties of owners of public sidewalks and adjacent areas (public or private) to parking lots. 

Elstun v. Spangles, Inc., 2009 Westlaw 3233757 (Ka. 10/9/09)

Plaintiff was injured in defendant’s parking lot when, while getting into her car on a “misty day,” she stepped back into a two inch deep hole that was filled with dark water and hard to detect, and broke her hip.  Defendant won on summary judgment in the trial court by arguing that the Kansas “slight defect” rule should logically be extended to parking lots, and that the defect in question fit within the judgment.

On appeal: Held: reversed.  The policy arguments supporting the “slight defect” doctrine do no apply here, even if logically the physical areas are similar.

Since 1935, Kansas courts have applied a judicially created rule that "[s]light and inconvenient defects in the sidewalk of a city street do not furnish basis for actionable negligence, even though a pedestrian may trip, fall, and injure [himself or] herself on account of such a trivial defect."

Although cases that apply this slight-defect rule generally use the terms "actionable negligence" or "actionable defect," in fact, that the rule is actually based on the definition of the duty owed by municipalities or property owners to pedestrians using the walkways in question. Specifically with regard to municipalities, the Kansas court has reasoned that "[t]he city is not an insurer of the safety of those who use its streets and walks. It is not required to furnish perfect walks. Its only duty in this respect is to furnish walks that are reasonably safe for use..

All of the early cases applying the slight-defect rule involved municipal liability for public walkways. As time wore on, however, this court applied the same rule in actions against individuals or private corporations whose property abutted a public sidewalk.

The question presented in the instant case-whether a property owner should always be relieved of the duty to repair slight defects in parking lots - is a policy question regarding the duty owed to patrons of parking lots. The question presented is whether the slight-defect rule should also be extended to parking lots, such as that owned by Spangles here. Spangles argues, and the district court agreed, that the same cost-utility analysis that underlies the rule regarding sidewalks-measuring the cost of the repair against the benefit of maintaining perfectly smooth surfaces-applies equally to parking lots, which often become worn down after normal wear and tear and Kansas weather conditions.

Plaintiff responded that sidewalks are different from parking lots in a number of ways that weigh against extending the rule. Most specifically, Plaintiff pointed out that parking lots are generally owned and maintained by businesses or other entities for the purpose of providing its clientele a convenient place to park vehicles; sidewalks are walkways open to the public.

The Kansas Court decided that the negligence issue should go to the jury:

" 'The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free people. A trial court, in the exercise of its prerogative in determining questions of law only in these kinds of cases, should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.' "

The court concluded that the slight-defect rule is a narrow, judicially created exception to this general principle that has until now been applied only to sidewalks.  It declined to expand that application.

Comment: The notion that sidewalks are open to the public, in frequent and common use, and create unmanageable maintenance risks, makes sense to the editor.  All these factors apply with less force to parking lots, which generally serve only business invitees of the owner. 

ASSOCIATIONS; ARCHITECTURAL REVIEW: Although Association has general right to enjoin violations of architectural covenants, it is bound by its own rules establishing time frames in which to act upon alleged violations, even if the violator failed to request advance approval.  Thus, objection to nonconforming shingles was waived. 

Falkner v. Colony Woods Home Ass’n,  198 P.3d 152 (Ka. App 2008)

A provision of the subdivision declaration stated:

"Roofs shall be covered with wood shingles, wood shakes, slate or tile. Any building products which may come into general usage for dwelling construction in this area after the date of these restrictions shall be acceptable if approved in writing by the Architectural Control Committee."

The Declaration established an Architectural Control Committee (ACC) as a 5 member group of homeowners that accepeds requests for new buildings and alterations and approved the requests under the Declaration of Restrictions.  In 1998, the ACC promulgated a form and procedure for applications for approvals of non-conforming shingles.  The new approval process required the homeowner to fill out and sign the form, include a material data sheet and bid proposal, include a copy of the City of Lenexa's Building Roofing Permit, and "await a written and signed response from [an] ACC member prior to ordering material or any work to begin." The Notice specified that the ACC would then have 30 days to respond in writing to any request received. The letter concluded by providing a 2-week period for "comments, objections, or suggestions to the new rule on alternative roofing.

Another provision of the Declaration provided for waiver by Association inaction:

“[I]f no suit to enjoin the erection of said building or the making of such alterations has been commenced prior to the completion thereof, such approval will not be required and this covenant will be deemed to have been fully complied with.' "

Other provisions, of the Declaration, however, gave the Association general authority to seek injunctions to enforce the Declaration. 

Falkners installed a new, arguably nonconforming, roof, without seeking permission in advance.  A few weeks after installation, they received a letter from the Chair of the ACC requesting that they fill out the required form asking permission.  Otherwise, the letter threatened the ACC would find the Falkners “out of compliance.”  The Falkners complied and filed their form on March 23.  The ACC did not respond within 30 days.  When Falkners’ attorney requested information on June 6, he got a letter from the ACC attorney informing him that the Falkners’ roof had previously been disapproved and that further action was coming.

Falkners sued for declaratory relief.

The court held that the general provision for seeking of injunctions might be viewed as applicable if Falkner’s had never applied for a permit.  The 30 day restriction, apparently, applied only to disputes that had already been joined. 

Although Falkner’s did not apply for a permit prior to building their roof, they in fact did so thereafter, at the invitation of the ACC.  The court held that this act triggered the internal 30 day period set forth in the ACC’s own rules.  Because the ACC failed to act within three months, they could not now object to the roof. 

Comment: Clearly one of the problems here is that the Declaration was written to establish the original Developer’s control over construction of new homes in the subdivision and simultaneously to establish the ACC control over subsequent developments.  This was a “lazy” way to do things, and clearly didn’t work well for the Association here. 

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