Jewett v. Miller

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Nos. 105,020
105,021

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILLIAM JEWETT,
Appellant,

v.

MICHAEL MILLER,
Appellee,

and

ANTWON CAFFEY,
Appellant,

v.

MICHAEL MILLER,
Appellee.

SYLLABUS BY THE COURT

1.
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences reasonably to
be drawn from the evidence in favor of the party against whom the ruling is sought. On
appeal, we apply the same rules and where we find reasonable minds could differ as to
the conclusions drawn from the evidence, summary judgment must be denied.

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2.
Summary judgment should be granted with caution in negligence actions.
Nevertheless, summary judgment is proper in a negligence action if the defendant shows
there is no evidence indicating negligence. Summary judgment is also proper in a
negligence action if the only questions presented are questions of law.

3.
An unsupported challenge to a witness' credibility is insufficient to create a
genuine issue of material fact.

4.
Although reasonable inferences may be drawn from the facts and conditions
shown, they cannot be drawn from facts or conditions merely imagined or assumed.

Appeal from Linn District Court; RICHARD M. SMITH, judge. Opinion filed August 26, 2011.
Affirmed.

John G. O'Connor, of Robb, Taylor & O'Connor, of Kansas City, for appellant William Jewett.

Roger W. McLean, of Kansas City, for appellant Antwon Caffey.

Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, for appellee.

Before GREEN, P.J., MARQUARDT, J., and BUKATY, S.J.

GREEN, P.J.: William Jewett and Antwon Caffey were injured when the car they
were occupying struck a horse that had escaped from Michael Miller's farm. Jewett and
Caffey brought suit against Miller, alleging that he had negligently failed to inspect and
maintain his fence, which had allowed the horse to escape. The trial court granted
summary judgment in favor of Miller. On appeal, Jewett and Caffey contend that the trial
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court improperly granted summary judgment in favor of Miller. We disagree.
Accordingly, we affirm the judgment of the trial court.

On June 17, 2004, Jewett was a passenger in a car heading north on Highway K-7
in Linn County. While Antwon Caffey was driving, he struck a horse owned by Miller.
The horse had escaped from its enclosure and was on the highway when it collided with
the car.

The only evidence concerning Miller's efforts to maintain his fence comes from
Miller's deposition. When the accident occurred, Miller owned a 352-acre farm off
Highway K-7 in Linn County. Miller kept two horses and approximately 42 head of
cattle, which he rotated between various enclosures on his farm. The two horses escaped
from enclosure 4, which abuts the highway. The fence on enclosure 4 facing the highway
was built in 1999 and is made of four sections of barbed wire strung between steel T-
posts and wooden fence posts. In addition, Miller had installed an electric fence inside the
section of enclosure 4 that faces the highway.

About a year or two before the accident, a contractor working for the local water
board installed a pipeline through Miller's property. The contractor bulldozed a swath of
trees and created a trench, which changed the direction of the water flow on Miller's land.
Miller did not notice the change in the water flow until about 2 months before the
accident, when he saw that water runoff had eroded the dirt under two of the T-posts on
fence enclosure 4, causing them to pop up from the ground. When Miller saw that the two
T-posts were loose, he drove them into the ground as far as he could and then set them in
concrete. With the exception of the two loose T-posts, all the other fence posts were
secure.

On the night of the accident, Miller arrived home from work and saw his bull and
one of his cows in his backyard. As Miller was putting the animals back in their
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enclosure, he saw his two horses running across the field headed for the highway. Miller
secured his cattle and was chasing after his two horses when he heard the accident.
Caffey saw one of the horses running across the highway but did not have time to react
before he struck it. Jewett has no recollection of the accident because he was asleep when
it happened and awoke in a hospital days later.

After the accident, Miller inspected the fence and found that there was a hole in
the fence on the northwest side of enclosure 4 near the highway, about 42 to 56 feet from
the spot where he had repaired the two T-posts 2 months earlier. Miller testified that the
fence was breached in a low lying drainage area and was caused by soil erosion. Miller
attributed the soil erosion to the excessive rainfall that occurred on the day of the accident
and to the change in the water drainage caused by the pipeline. The soil had eroded under
two fence posts in a culvert receiving large amounts of water runoff, causing the fence
posts to pop out of the ground. Miller testified that it seemed his bull had gotten his head
under the washed out section of fence and damaged the fence. This created a hole in the
fence, which allowed the horses to escape. Miller believed the electric fence stopped
working when the fence got washed out. Miller testified that if an electric fence loses
tension, it will come in contact with the barbed wire, causing the electric fence to short
out.

When Miller learned of the breach in the fence, he temporarily repaired the hole in
the fence the night of the accident. Moreover, the next week he permanently repaired the
hole by securing eight or nine new T-posts with heavy baskets of rocks. (The rocks are
used to weigh down the fence posts when the soil is inadequate to hold the posts in the
ground.)

Miller testified that the damage to his fence must have occurred that day because
he checked the fence a day or two before the accident happened and saw no problems.
Miller made it a habit to check the fence along the highway every 2 days by driving along
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the perimeter in a four-wheel, all-terrain vehicle. Miller testified that a visual inspection
was all that was necessary to know if the fence was in good condition. Finally, Miller
testified that his horses had never escaped from their enclosures before the night of the
accident.

Jewett and Caffey jointly sued Miller, alleging the horses had escaped because of
Miller's negligent failure to inspect and repair his fence. Later, Jewett and Caffey filed
separate actions against Miller.

At the close of discovery, Miller moved for summary judgment against Jewett and
Caffey. The trial court granted Miller's motion, finding that Jewett and Caffey had failed
to present any evidence showing Miller had failed to exercise due care in maintaining his
fence or in keeping his livestock confined. Jewett and Caffey both filed notices of appeal.
Jewett's and Caffey's cases were consolidated for this appeal.

Did the Trial Court Err in Granting Summary Judgment in Favor of Miller?

Jewett and Caffey have only one argument on appeal. They contend that the trial
court erred in granting summary judgment in favor of Miller because a reasonable
factfinder could have concluded that the accident was caused by Miller's negligent failure
to adequately inspect and maintain his fence.

Our standard of review for a motion for summary judgment is firmly established:

"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably to be drawn from the evidence in favor of the party against whom the ruling is
sought. . . . On appeal, we apply the same rules and where we find reasonable minds
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could differ as to the conclusions drawn from the evidence, summary judgment must be
denied." Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).

Summary judgment should be granted with caution in negligence actions. Esquivel
v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). Nevertheless, summary judgment is
proper in a negligence action if the defendant shows there is no evidence indicating
negligence. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047
(2007). Summary judgment is also proper in a negligence action if the only questions
presented are questions of law. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169
P.3d 1052 (2007).

The essential elements of negligence are as follows: (1) a legal duty owed by the
defendant to the plaintiff; (2) a breach of that legal duty; (3) the breach of that legal duty
was the proximate cause of the plaintiff's injury; and (4) the plaintiff sustained damages.
Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 585-86, 214 P.3d 1173
(2009).

Here, for Jewett and Caffey to prevail on their claim, they must show that under
all the facts and circumstances, Miller breached his duty by failing to exercise due care in
keeping his horses enclosed. See Walborn v. Stockman, 10 Kan. App. 2d 597, 599, 706
P.2d 465 (1985). To prevail in his summary judgment motion, Miller is not obligated to
show a lack of negligence on his behalf. See Sharples v. Roberts, 249 Kan. 286, 292, 816
P.2d 390 (1991). Whether Miller breached his duty of care is a question of fact, and, as
such, we must examine the evidence and the inferences that can be drawn from them in
the light most favorable to Jewett and Caffey since they are the parties opposing the
motion for summary judgment. See Marshall v. Heartland Park Topeka, 274 Kan. 294,
298, 49 P.3d 501 (2002). Nonetheless, Jewett and Caffey must present some evidence to
preclude summary judgment. In Kansas, the doctrine of res ipsa loquitur does not apply
in livestock escape cases. Farmers are not automatically liable just because one of their
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animals has escaped from a fenced pasture. Harmon v. Koch, 24 Kan. App. 2d 149, 153,
942 P.2d 669 (1997); Walborn, 10 Kan. App. 2d at 601-02.

Thus, under Kansas law, Jewett and Caffey must show that one of Miller's horses
was unattended and on the highway because Miller failed to exercise due care in keeping
the horse confined. In other words, they must point to some evidence of a disputed
material fact regarding Miller's failure to exercise due care in maintaining and inspecting
his fence.

Jewett and Caffey contend that Miller breached his duty to exercise due care in
keeping his horses confined when he failed to physically inspect his fence posts after
becoming aware of the erosion problem. This argument is flawed. Under their argument,
Jewett and Caffey are tacitly assuming that Miller's failure to physically inspect his
fencing after becoming aware of the erosion problem breached his duty to exercise due
care in keeping his horses confined. Nevertheless, their evidence falls far short of
establishing this contention.

First, Jewett and Caffey cite no authority that required Miller to make a physical
inspection of the fence posts. To the contrary, in Walborn this court seemed to hold that a
visual inspection of the fencing would be adequate. In that case, the evidence showed that
the defendant or his brother visited the pasture "every 'day or every other day'," that the
defendant had never had a cow escape from his pasture, and that the fences enclosing the
cow appeared to be adequate. 10 Kan. App. 2d at 600. Indeed, the material facts in this
case are very similar to the facts in Walborn, where the defendant was found not to be
liable for an escaped cow.

Turning our attention to Miller's use of a visual inspection of his fence, we note
that Miller testified that a visual inspection alone was sufficient to detect problems with
the fence. Jewett and Caffey attack Miller's credibility on this point without presenting
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any evidence to support their assertion. An unsupported challenge to a witness' credibility
is insufficient to create a genuine issue of material fact. Estate of Pemberton v. John's
Sports Center, Inc., 35 Kan. App. 2d 809, 835-36, 135 P.3d 174 (2006).

Second, to argue, as Jewett and Caffey do, that because the fence had eroded in
one area it would erode in another area is to generalize from too few instances of an
erosion problem. Moreover, the facts show that when Miller saw an erosion problem in a
particular spot on the fence, he took the necessary steps to correct the problem. For
example, when Miller saw that the two T-posts were loose, he acted to correct the
problem by setting them in concrete. With the exception of the two loose T-posts, Miller
testified that all the other fence posts were secure. This was direct testimony that the
fence was in good condition before the accident or injury occurred. As a result, no
circumstances existed that would have made a reasonable person anticipate that Miller's
horses would escape. See Walborn, 10 Kan. App. 2d at 600 ("In short, we see nothing in
the circumstances of this case to establish that Stockman, in the exercise of due care,
should have checked his pasture and on his cow more often than once each day or two,
or, most importantly, that doing so would have prevented the occurrence of the accident."
[Emphasis added.]).

Next, Jewett and Caffey contend that Miller's testimony that he visually inspected
the fence every 2 to 3 days is inconsistent with his testimony that he saw nothing wrong
with the fence in the area where it eventually eroded and the horses escaped. They insist
that "a reasonable mind" could conclude that Miller "did not perform adequate
inspections" or that Miller did not testify "truthfully" when he stated that he regularly
performed fence inspections after repairing the two loose T-posts. Jewett and Caffey's
argument, however, literally begs the question, assuming the very point which had to be
proved.

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Indeed, Jewett and Caffey's argument presupposes what it endeavors to prove,
namely, that Miller did not adequately inspect the fence as he testified he did or that
Miller lied when he stated that he regularly performed fence inspections after earlier
repairing the two loose T-posts. That is something, of course, that Jewett and Caffey had
to prove. Nevertheless, they have offered no discernable evidence on either of these two
points. Instead, Jewett and Caffey's offer of proof involves an attack on Miller's
credibility. As stated earlier, this is insufficient. See Estate of Pemberton, 35 Kan. App.
2d at 835-36 (An unsupported challenge to a witness' credibility is insufficient to create a
genuine issue of material fact.).

Furthermore, Jewett and Caffey argue that had Miller made regular physical
inspections of the fence, he would have "detected" the erosion problem and remedied it
before the accident or injury occurred. Consequently, Jewett and Caffey seem to argue
that "the presumption of inference of negligence" under the doctrine of res ipsa loquitur is
applicable to this case. See Rhodes v. Dehaan, 184 Kan. 473, 475, 337 P.2d 1043 (1959).
Nevertheless, as stated earlier, the doctrine of res ipsa loquitur is inapplicable to livestock
escape cases. Harmon, 24 Kan. App. 2d at 153.

Because the evidentiary presumption of negligence under the doctrine of res ipsa
loquitur is unavailable to them to establish a breach of duty, Jewett and Caffey must point
to some facts or evidence on which their proposition, that Miller breached his duty, may
be logically based. A jury may not be permitted to reach its verdict on the basis of
speculation or conjecture. See Duncan v. Railway Co., 86 Kan. 112, 123, 119 P. 356
(1911) ("While the jury were warranted in drawing fair and reasonable inference from the
facts and conditions shown, it was only from those shown and not from those imagined or
inferred that such inference could rightfully be drawn."). Yet, Jewett and Caffey rely on
speculation and conjecture as support for the proposition which they want to establish.

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For example, Jewett and Caffey point to no facts or evidence that would show that
Miller breached his duty of care by failing to make regular physical inspections of the
fence. Jewett and Caffey, simply surmise that Miller breached his duty of care when they
assert that he failed to regularly physically inspect the fence. But the facts are contrary to
their proposition. To illustrate, Miller testified that he checked the fence along the
highway every 2 days by driving along the perimeter in a four-wheel, all-terrain vehicle.
Miller further testified that a visual inspection was all that was necessary to know if the
fence was in good condition. Finally, Miller testified that the damage to his fence must
have occurred the day of the accident because he had checked the fence a day or two
before the accident happened and saw no problems. As we stated earlier, a mere escape
of Miller's horses from their enclosure without fault of Miller would not have rendered
him liable.

Except for speculation and conjecture, Jewett and Caffey point to no facts or
evidence of a disputed material fact regarding Miller's alleged failure to exercise due care
in maintaining and inspecting his fence. Although reasonable inferences may be drawn
from the facts and conditions shown, they cannot be drawn from facts or conditions
merely imagined or assumed. Duncan, 86 Kan. 112, Syl. ¶ 5. Consequently, Jewett and
Caffey have failed to connect the facts in such a way that they converge on the
proposition which they want to establish: that Miller breached his duty by failing to
exercise due care in keeping his horses confined. See Farmers Ins. Co. v. Smith, 219 Kan.
680, 689, 549 P.2d 1026 (1976) (In law, permissible presumptions or inferences "must
have substantial probative force as distinguished from surmise."). Because the evidence
indicates that Miller properly maintained the section of the fence in question, no liability
attached to him.

Finally, Jewett and Caffey contend that the extensive repairs Miller made to the
fence after the accident show that Miller was negligent for failing to make those
modifications to the fence before the accident. They argue that if Miller had taken those
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steps before the accident, the fence would not have been eroded by the water.
Nevertheless, the evidence of Miller's repairs to the fence was inadmissible to prove
negligence:

"When after the occurrence of an event remedial or precautionary measures are
taken, which, if taken previously would have tended to make the event less likely to
occur, evidence of such subsequent measures is not admissible to prove negligence or
culpable conduct in connection with the event." K.S.A. 60-451.

Nevertheless, Jewett and Caffey maintain that the measures were admissible to
show the condition of the place or thing when the accident occurred or the feasibility of
the methods which could have been used to anchor the fence. This point, while true, is
irrelevant. There is no material question of fact regarding the condition of the fence
before the accident—Miller testified that it was in good condition 1 or 2 days before the
accident. The feasibility of additional methods to secure the fence was also not at issue in
this case.

As a result, only one question was required to be determined: whether Miller was
negligent in maintaining and inspecting the fence. Jewett and Caffey would like to point
to the remedial measures Miller took after the accident as evidence that Miller was
negligent in not taking those steps before the accident. Nevertheless, as the trial court
correctly held, they cannot do this under K.S.A. 60-451.

In summary, the evidence showed that Miller enclosed his horses in a barbed wire
and electric fence. He inspected the fences regularly, repaired them as necessary, and had
never before had a problem with his animals escaping their enclosures. Jewett and Caffey
essentially want this court to apply the doctrine of res ipsa loquitur and conclude that
Miller must be liable because his horses got out of their enclosure. But Kansas law
requires them to show some evidence that Miller was negligent. Because they have failed
to meet this burden, the trial court properly granted summary judgment in favor of Miller.
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Affirmed.