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No. 102,662 IN THE COURT OF APPEALS OF THE STATE OF KANSAS ADAM SIMMONS, Appellant, v. RICHARD W. PORTER and SARAH M. PORTER, D/B/A PORTER FARMS, Appellees. SYLLABUS BY THE COURT 1. The defense of assumption of risk under Kansas law is analyzed and applied.

2. A party opposing summary judgment must produce something of evidentiary value in its arguments. The fact that a party has an explanation of the uncontroverted facts does not necessarily make them controverted.

3. The assumption of risk doctrine still exists in Kansas concerning certain employeremployee relationships.

4. Within its very restricted periphery of application, the common-law defense of assumption of risk has not been altered by the adoption of comparative fault, K.S.A. 60258a, and continues to constitute an absolute bar to recovery.

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5. Under the doctrine of assumed risk, one who voluntarily exposes one's self to known or appreciated danger due to the negligence of another may not recover for the injury sustained thereby.

6. The assumption of the usual risks of employment is not ordinarily a jury question. It is a matter of law. It is only if the risk is or may be unusual that a jury question can arise, and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent person could appreciate and understand, the worker who persists in the employment assumes the risk.

Appeal from Lyon District Court. W. LEE FOWLER, judge. Opinion filed January 7, 2011. Affirmed.

Jeffrey W. Jones, of Hamilton, Laughlin, Barker, Johnson & Watson, of Topeka, for appellant.

Craig C. Blumreich, of Larson & Blumreich, Chartered, of Topeka, for appellees.

Before LEBEN, P.J., PIERRON and BUSER, JJ.

PIERRON, J.: Adam Simmons appeals a summary judgment ruling in favor of Richard W. Porter and Sarah M. Porter, d/b/a Porter Farms (Porter Farms) after he was tragically injured in a gasoline fire. Simmons argues the district court improperly applied the assumption of risk doctrine in granting summary judgment to Porter Farms.

The parties agree on the following uncontroverted facts:

Simmons sustained personal injury on February 11, 2004, while performing work in the course and scope of his employment with Porter Farms. Simmons had been hired 2

by Porter Farms to work as a mechanic on farm trucks and machinery. When Simmons applied for the job, he advised Porter Farms he was an auto mechanic with several years of experience. Simmons claimed he had a lifetime of experience as an auto mechanic.

At the time he was injured, Simmons was in the process of removing the fuel tank from a 1978 Ford F-250 pickup truck. The truck had a gas leak in the fuel tank and Simmons was going to remove the fuel tank to determine where it leaked and if the fuel tank could be repaired or would need to be replaced.

Simmons commenced his work on the fuel tank without first draining or removing the fuel from the tank; the level being "less than a half a tank." In his deposition, Simmons explained he left 5 or less gallons of fuel in the tank in order to keep the gas fumes down and in turn keep the ignition possibilities down. Simmons used a 4-ton floor jack to raise the truck so he could work underneath it. Simmons rolled under the vehicle on his back on a floor creeper. He hung a shop light from the frame rail of the truck for illumination.

Simmons found that the fuel tank was secured by a plumbing strap wrapped around the tank and connected to the frame by one bolt on the front side and by bailing wire wrapped around the tank and the frame on the back side. Simmons was aware of how the fuel tank was attached even before he put the jack under the truck to raise it. Although the fuel tank was not secured with factory straps or replacement part straps, Simmons continued to work on the truck anyway. He began removing the fuel tank by using a pneumatic wrench to loosen the bolt securing the plumbing strap to the frame. The fuel tank suddenly shifted, fell, and dropped off of the jack. Simmons was covered in gasoline. As Simmons quickly pushed out from under the truck on the floor creeper, his foot caught on the shop light causing it to fall, break, and ignite the gasoline, setting him on fire.

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Simmons was fully aware of the fuel tank configuration on the truck and knew there was a potential risk of fire in removing a fuel tank. Simmons acknowledged that the condition of the fuel tank was open and obvious to him and he understood the risks in removing the tank.

Simmons had removed fuel tanks from other Porter Farm vehicles. However, each of the prior tanks had been properly secured with factory straps or replacement straps. Nearly all of Simmons' time at Porter Farms was spent in the shop working on farm trucks and machinery. There were three mechanics who worked at Porter Farms during the time Simmons worked there. However, Simmons said there was no one at Porter Farms at this time who knew more about fixing cars and trucks than he. Porter Farms did not have a vehicle lift, a fuel siphon pump, or a car jack.

Simmons was severely burned and permanently injured in the fire. Simmons sued Porter Farms, arguing Porter Farms owed him a legal duty of care and skill to provide him with a reasonably safe workplace. He alleged the breach of this duty was the natural, probable, and proximate cause of his injuries.

In managing the case, the district court permitted Porter Farms to file a motion for summary judgment on the issue of Porter Farms' affirmative defense of assumption of risk. In granting summary judgment to Porter Farms, the district court concluded as follows:

"The Court believes that this is an assumption of risk case. The court finds that, under the circumstances of this case, the court can rule as a matter of law on the assumption of risk issue and not submit it to a jury. "The plaintiff in this case had knowledge relating to the use of or dealing with automobile mechanics or vehicle repair equal to or superior of that of the defendants. The court finds the plaintiff was in charge of this particular project and nobody else told him how to do his job. The court finds the plaintiff did recognize that there is a risk of fire

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with gasoline and made a decision to proceed ahead with the project as he was asked to do as part of his employment. The court finds the plaintiff did not ask for any additional equipment but chose to proceed with the equipment that he had in his possession. Based upon these findings, the court believes the doctrine of assumption of risk applies and that the motion for summary judgment should be granted. "In addition to its previous findings, the court finds that there was no defective equipment or tools used or provided by the defendants in this case. There may not have been the ideal equipment or proper equipment but the equipment provided to the plaintiff to perform the repair was not defective. "The court does not make a finding that negligence existed or did not exist because this is a case where the doctrine of assumption of risk bars the cause of action whether the defendants were negligent or not. The finding of the court is simply that, based upon the evidence contained in the discovery record, the plaintiff was in charge of the project and how the project was performed and, since the plaintiff was in charge and had the most knowledge of automobile mechanics and that kind of work, certainly more than the defendants, the court finds the plaintiff assumed the risk of injury."

On appeal, Simmons first argues the district court erroneously found all of the facts in Porter Farms' motion for summary judgment to be uncontroverted and failed to give proper consideration to the facts stated in his response. He cites no Supreme Court Rules or case law supporting his argument, which consumes a little over one page of his appellate brief.

The court in City of Arkansas City v. Bruton, 284 Kan. 815, 166 P.3d 992 (2007), addressed a similar type of argument. The Bruton court held the Court of Appeals erred when it concluded that the parties violated Supreme Court Rule 141 (2006 Kan. Ct. R. Annot. 203.) and that the sheer number of filings of statements of facts indicated there remained unresolved material facts. 284 Kan. at 837. In arriving at this conclusion, the Bruton court engaged in the following analysis:

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"This is a complex case, involving complex facts. It is to be expected, in such cases, that litigation will become heated. It is not uncommon in such instances that parties may submit long 'factual statements' that also include conclusory statements and legal arguments. However, contrary to the Court of Appeals' conclusion, this fact alone does not make summary judgment improper under Rule 141. In fact, Rule 141 provides that a district court should state the facts it finds controlling when issuing its decision-indicating that not all facts listed by the parties (even if controverted on some level) will be material to its decision. "The district court noted that it believed it could 'separate the wheat from the chaff in the City's statement of uncontroverted facts,' by sorting out conclusory statements and statements that led to improper legal conclusions. It also found that it was able to sort out the facts that were material to the resolution of this case. The resolution of procedural questions is not specifically addressed by the Supreme Court Rules, and the Rules of Civil Procedure are left to the sound discretion of the trial court. The fact that parties claim that more facts are 'uncontroverted' than that required by Rule 141 does not render summary judgment improper when the trial court undergoes the correct legal analysis and identifies that the facts necessary to decide such legal questions have not been challenged." 284 Kan. at 836-37.

The district court below engaged in the same separation of the wheat from the chaff in adopting its statement of uncontroverted facts. At the beginning of the summary judgment hearing, the district court stated, "I will advise you that I have read everything you submitted and the complete file." Later, in rendering its ruling from the bench, the district court repeated that it had considered the entire file in preparation and stated:
"I have looked at the defendant's motion for summary judgment and the uncontroverted facts that were submitted as part of that memorandum and I would note that there is - those facts are not controverted. Now there is some explanations on some of the points that were made. All the responses are uncontroverted but there are some, yes, but answers that say here are some additional comments or facts or opinions about what they mean."

Simmons argues the district court failed to consider the 17 additional facts he claimed were uncontroverted. He contends we should deem all his facts uncontroverted 6

since he is the nonmoving party in the summary judgment proceedings and so is entitled to a reasonable inference of facts viewed in his favor. Simmons does not cite any authority in support of this statement. We agree with the district court that Simmons is encouraging the court to adopt his "yes-but" statement of facts as uncontroverted facts. A party opposing summary judgment must produce "something of evidentiary value." Kastner v. Blue Cross & Blue Shield of Kansas, Inc., 21 Kan. App. 2d 16, Syl.

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