# Kerns Ex Rel. Kerns v. G.A.C., Inc. > Supreme Court of Kansas · May 27, 1994 · 255 Kan. 264 URL: https://www.frixlaw.com/law-library/cases/9792632 ## Case - **Full name:** Aaron Kerns, a Disabled Minor, by and Through Samuel Kerns, His Natural Parent, Natural Guardian, and Next Friend, Appellant/Cross-Appellee, v. G.A.C., Inc., Et Al., Appellees/ Cross-Appellants, and American Fence Company, Appellee - **Court:** Supreme Court of Kansas - **Decided:** May 27, 1994 - **Citations:** 255 Kan. 264; 875 P.2d 949; 1994 Kan. LEXIS 95 - **Precedential status:** Published - **Opinion:** Concurrence by McFarland - **Judges:** Lockett, McFarland, Six, Abbott, Prager - **Cited by:** 74 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792632 ## How later opinions describe it (automated extraction) - explaining that the trial court “applied the wrong statute” when it dismissed a claim relating to a defective fence as time-barred under § 60-513 because the court should have used the § 60-3303(b) 2 Subsection (d) covers latent diseases caused by exposure to harmful materials… - holding that in addition to protection accorded by state statute of repose, installer of fence surrounding closed swimming pool “had no duty to warn because the danger or hazard alleged was open or obvious which should have been realized by a reasonable user of the product. K.… - holding that plaintiff s negligence claims were barred by statute of repose because more than 10 years lapsed between installation of fence in 1968-1969 and plaintiff's 1990 injury - explaining that an officer or director of a corporation is not liable for the torts of the corporation unless he or she commits or participates in the tort - explaining that even though § 60- 3303(b) governed, the case was time-barred because the relevant exceptions did not apply ## Opinion text McFarland, J., concurring: I concur in the result reached by the majority. I disagree with the rationale utilized to uphold the entry of summary judgment in favor of American Fence. The district court granted summary judgment on the basis the action was barred by K.S.A. 1993 Supp. 60-513(b). The majority upholds the entry of summary judgment but applies K.S.A. 1993 Supp. 60-3303(b). I believe the rationale of the trial court was correct. Under the allegation contained in the petition, American Fence was in this action wearing two hats: (1) installer of the fence and (2) manufacturer of the fencing material, used in the installation. A different statute of limitation/repose applies to the two claims. The negligent installation claim is governed by 60-513(b). More than 10 years had passed between the time the fence was installed and the injury was received by Kerns. Thus, the installation claim was barred, as correctly held by the trial court, by 60-513(b). The fabrication (manufacturing) claim is governed by K.S.A. 1993 Supp. 60-3302(c), (d) as it is a product liability claim. The product involved is ordinary standard gauge chain link fencing. *285 There is no evidence the fencing material was negligently manufactured or designed or that some component of die product was negligently installed in the manufacturing process. Thus, this claim fails for lack of evidence to support a product liability action. As noted by Justice Six in his concurring opinion, the duty to warn claim which is included in the claim against American Fence in its manufacturer’s role fails because the product was not defective and did not injure the plaintiff, nor did it present a life-threatening hazard. See Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741 , 861 P.2d 1299 (1993). Thus, there is no need to apply K.S.A. 1993 Supp. 60-3302(c), (d) on the product liability aspect of the claims against American Fence. Six, J., concurring: I concur in the result reached by the majority. The summary judgment issue as to the Orindgreffs, however, is a close one. Oiler was an employee of G.A.C., the corporate owner of the premises. The instructional relationship among the Orindgreffs, Oiler, and G.A.C. will be of interest to the factfinder on remand. If the responsibility of maintaining the pool at the time of injury was placed with Oiler as G.A.C.’s employee, the Orindgreffs may be free of liability. The admission of collateral source benefits evidence was material. The case is remanded for a new trial. Consequently, syllabus paragraphs eight and nine and the corresponding portions of the majority opinion are not required. During oral argument, counsel for Kerns advanced Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741 , 861 P.2d 1299 (1993), as support for Kerns’ continuing duty to warn claim asserted against American Fence. Patton was decided after the trial court’s ruling. The fence neither injured the plaintiff nor “presented] a life-threatening hazard.” See Patton, 253 Kan. at 759 . The post-sale duty to warn recognized in Patton is not applicable under the facts in the case at bar. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792632. Public record. Not legal advice.