Simon v. Brown-Atchison Electric Cooperative Assn. ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,523
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ALVIN SIMON,
Appellant,
v.
BROWN-ATCHISON ELECTRIC COOPERATIVE ASSN., INC.,
Appellee.
MEMORANDUM OPINION
Appeal from Brown District Court; JAMES A. PATTON, judge. Opinion filed December 23, 2021.
Affirmed.
Andrew E. Werring, of Farris, Fresh, and Werring Law Office, LLC, of Atchison, for appellant.
Gregory A. Lee and Danielle N. Davey, of Sloan, Eisenbarth, Glassman, McEntire & Jarboe,
L.L.C., of Topeka, for appellee.
Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.
PER CURIAM: Alvin Simon appeals the district court's award of summary
judgment to Brown-Atchison Electric Cooperative. He argues the district court erred
when it dismissed his claim for failure to designate an expert witness because, according
to Simon, an expert is not required. Following a thorough review of the issue presented,
we conclude summary judgment was appropriate because an expert witness was
necessary to resolve Simon's negligence claim. The decision of the district court is
affirmed.
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FACTUAL AND PROCEDURAL BACKGROUND
Alvin Simon owns farmland in Brown County, just a few miles south of the
Kansas-Nebraska border. Brown-Atchison, the local electricity provider, owned and
maintained an overhead transmission line that ran through Simon's property. Under an
agreement for electric service and membership, Simon granted Brown-Atchison
permission to enter his farm to inspect and maintain its equipment.
On March 6, 2017, a tree branch on Simon's property blew into Brown-Atchison's
power line and caused sparks to fall onto the grass below. A fire erupted and spread
throughout Simon's property, resulting in damage to several pieces of his farm
equipment, including a skid loader, a drill, automobiles, and a Case tractor.
Simon sued Brown-Atchison for the damages caused by the fire and alleged the
company was negligent because it did not trim the tree limbs around its transmission
lines. This, Simon argued, was a breach of Brown-Atchison's duty under Cerretti v. Flint
Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 354-55, 837 P.2d 330 (1992) ("'A
distributor of electrical power has a duty to make frequent and careful inspections of its
installations . . . and to eliminate hazardous conditions existing in such areas. Failure to
do so constitutes negligence.'"). Brown-Atchison raised contributory negligence as an
affirmative defense and alleged that Simon refused to allow its employees onto his
property to trim the trees. According to Brown-Atchison's general manager, Jim Currie,
the company's employees "pleaded with [Simon] to allow them to cut the tree limbs
around the subject line, but [Simon] refused to allow Brown-Atchison to do so."
The district court held a case management and discovery conference and ordered
both parties to designate expert witnesses and submit their written reports, Simon by
March 29, 2019, and Brown-Atchison by April 30. Simon timely filed his preliminary
witness and exhibit list but failed to include a designated expert. Brown-Atchison also
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filed its witness and exhibit list, which designated Jim Currie as the company's expert
witness.
Brown-Atchison moved for summary judgment. In support thereof it argued that
because Simon failed to designate an expert witness, he could not prove the company
breached the industry's standard of care. Simon responded and insisted that an industry
expert was unnecessary because a jury could rely on its common knowledge to infer
negligence from Brown-Atchison's failure to trim limbs around its transmission line.
Brown-Atchison replied and argued that a trier of fact would not understand the relevant
standard of care and Brown-Atchison's alleged deviation from such a standard without
the benefit of expert testimony. Simon responded once more and asserted that the
industry standard of care was irrelevant and, to the extent that it carried any relevancy,
Brown-Atchison bore the burden to prove it satisfied that standard.
The district court conducted a hearing to announce its decision on Brown-
Atchison's motion. In issuing its ruling, the court directed the parties to an extensive
outline of Kansas cases which it believed suggested that, in cases involving electrical
transmission lines, an expert must be called to establish the standard of care. Thus, since
Simon failed to designate an expert, he could not sustain his burden to prove a breach
occurred and it was appropriate to grant Brown-Atchison's summary judgment request.
Simon now brings the matter before us to resolve.
ANALYSIS
DID THE DISTRICT COURT ERR WHEN IT GRANTED SUMMARY JUDGMENT TO BROWN-
ATCHISON AFTER SIMON TO DESIGNATE AN EXPERT WITNESS?
Simon argues the district court erred in granting Brown-Atchison's motion for
summary judgment because an expert was unnecessary and a genuine issue of material
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fact remained over whether Brown-Atchison was aware of a dangerous condition. The
parties agree that our standard of review in summary judgment appeals is de novo. See
Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013).
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 must resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. To avoid summary judgment, the adverse party must come forward with evidence
to establish that a material fact is in dispute. Becker v. The Bar Plan Mut. Ins. Co., 308
Kan. 1307, 1311, 429 P.3d 212 (2018).
1. Was an expert necessary in this matter?
To recover for negligence, a plaintiff must prove the existence of four familiar
elements: a duty, a breach of that duty, an injury, and a causal connection between the
duty and the injury. Yount v. Deibert, 282 Kan. 619, 623-24, 147 P.3d 1065 (2006).
Kansas courts are reluctant to draw inferences from fires because they occur often and,
many times, result without negligence on the part of any party. 282 Kan. at 624.
Expert testimony is often required to establish the standard of care in cases
involving professional actions. Midwest Iron & Metal, Inc. v. Zenor Electric Co., Inc., 28
Kan. App. 2d 353, 354, 19 P.3d 181 (2000). When certain facts are somewhat alien in
their terminology or technological complexities would preclude an ordinary trier of fact
from rendering an intelligent judgment, parties must employ the use of experts to
demonstrate their claim. See Juhnke v. Evangelical Lutheran Good Samaritan Society, 6
Kan. App. 2d 744, 748, 634 P.2d 1132 (1981). Thus, the district court properly found that
Kansas courts routinely require expert witnesses in cases involving electrical
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components. See, e.g., Midwest Iron, 28 Kan. App. 2d at 354 ("We have no hesitation in
determining that the standard of care of the profession of electrical contractors is
technical in nature and of such complexity as would require expert testimony."). In Pape
v. Kansas Power & Light Co., 231 Kan. 441, 445, 647 P.2d 320 (1982), a case involving
the construction and maintenance of transmission lines, the Kansas Supreme Court held
that expert testimony was required because the subject did not fall within a typical juror's
common knowledge. In Wilson v. Kansas Power & Light Co., 232 Kan. 506, 511, 657
P.2d 546 (1983), the Supreme Court observed that an electricity company's standard of
care requires the company to perform its work "'consistent with the practical conduct of
business under the known methods and present state of the particular art.'" These
authorities suggest that a plaintiff must present expert testimony to establish an electricity
company's duty of care. When Simon failed to designate an expert witness who could
establish Brown-Atchison's duty of care, he could not prove the company's negligence.
2. Can we consider Simon's allegation, raised for the first time on appeal, that
Brown-Atchison had pre-fire notice of the danger?
Simon argues he did not need an expert witness to prove the standard of care
because he had placed Brown-Atchison on notice about the overhanging limbs. To that
end, he seeks to analogize his case with Mastin v. Kansas Power & Light Co., 10 Kan.
App. 2d 620, 622-23, 706 P.2d 476 (1985). In Mastin, a farmer was injured when he
drove his combine into a sagging power line, and he sued the power company for
negligence. The district court granted summary judgment to the power company, but a
panel of this court reversed the decision because the plaintiff presented evidence that the
power company knew about the dangerous sag in the transmission line before the
farmer's injury. 10 Kan. App. 2d at 623-34. Simon contends his case is similar because
Brown-Atchison knew the tree branches needed to be trimmed before the fire even
occurred, and since notice does not constitute a technical matter, expert testimony was
not necessary in order to prove the company was negligent.
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The primary problem with Simon's argument is his failure to ever present it to the
district court for consideration. Rather, the petition he filed simply alleged that Brown-
Atchison breached the duty of care "used by prudent persons engaged in the industry
under like conditions and commensurate with the dangers involved to guard against
contingencies which can be reasonably foreseen and anticipated." Issues not raised before
the district court cannot be raised for the first time on appeal. Wolfe Electric, Inc. v.
Duckworth, 293 Kan. 375, Syl. ¶ 9, 266 P.3d 516 (2011). Simon does not acknowledge
his failure to raise this issue below or otherwise explain why it should be considered for
the first time on appeal. As a result, we find Simon has waived or abandoned this
argument. See Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35); State v. Godfrey,
301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (holding that Rule 6.02[a][5] is to be strictly
enforced).
3. Did a controversy of fact exist?
Simon also argues the district court erred in awarding summary judgment to
Brown-Atchison because a controversy in fact existed. He points to the following two
claims contained within the affidavit filed by Jim Currie, Brown-Atchison's expert, as
support for his contention: (1) that Simon resisted Brown-Atchison's attempts to trim the
tree limbs, and (2) that when Currie confronted Simon about his resistance, Simon
claimed he never prohibited Brown-Atchison employees from entering his property. It is
Simon's contention that this discrepancy between the two versions of events points to a
disputed material fact that rendered summary judgment inappropriate.
This argument is unpersuasive. The conflicting claims that Currie recounted are
not contradicted by any of Simon's evidence. So even though the affidavit signals that
Simon disagreed with Currie's narrative, Simon never affirmatively pleaded contradictory
facts that created a genuine controversy. Indeed, Simon amended his petition after
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Brown-Atchison filed Currie's affidavit, but that amended version did not allege Currie
was mistaken or lying about confronting Simon about his refusal to allow Brown-
Atchison employees onto his property. Further, in Simon's response to Brown-Atchison's
motion for summary judgment, he simply reiterated his argument that the company
breached the industry's standard of care. He did not assert that it received notice of the
danger. In short, Simon never presented his own evidence which gave rise to a disputed
material fact. Thus, summary judgment was appropriate. See Scott v. Hughes, 294 Kan.
403, 411, 275 P.3d 890 (2012).
Simon's failure to designate an expert to establish the industry's standard of care
resulted in a failure to present evidence of a breach of that standard. Thus, Simon failed
to present a genuine issue of material fact. The district court properly granted summary
judgment in favor of Brown-Atchison.
Affirmed.
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