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GILGER v. LEE CONSTR.12/19/1990
The plaintiffs appeal from the granting of summary judgment on behalf of the defendants. The trial court held that the plaintiffs' claims against the defendants were barred by the statute of limitations and granted summary judgment in favor of all of the defendants as to the adult plaintiffs and summary judgment in favor of the defendants Lee and Unger as to the minor plaintiffs.
After a careful review of the record in this case, we have concluded that the trial court erred in granting summary judgment in favor of the defendants, and we reverse and remand.
The plaintiffs' action contended that the defendants were responsible in a variety of ways for the injuries sustained by plaintiffs. These injuries, they allege, were caused by their inhalation of carbon monoxide fumes from 1981 to 1987.
The genesis of this lawsuit occurred in the year of 1977. In that year, the defendant Lee Construction Inc., (Lee) as general contractor, built a home in Garden City. The defendant Unger Heating and Air Conditioning (Unger) installed a two-furnace heating system in the house. The home was completed on August 1, 1977, and that was the last date on which the defendant Lee had any contact whatsoever with the furnace in question. The furnace was improperly vented on its installation and this condition existed from August 1, 1977, until sometime in 1987. When
the house was completed, it was first sold to a Mr. Cantrell, who began to occupy it on August 1, 1977. There is no indication in the record whether Mr. Cantrell suffered any ill effects during the period of time he lived in the house.
In 1981, the McGraws purchased the house and began to occupy it along with their minor children. Kathryn McGraw began to feel ill during her first year of occupying the home, and her illness continued at least until November 24, 1987. Iona Ruth Gilger, the mother of Kathryn McGraw, moved into the home to live with the McGraws sometime in 1984 and almost immediately began to feel ill. By October 1985, every member of the household was experiencing some degree of ill health.
Although all members of the McGraw family became ill during their occupancy of the home, Kathryn McGraw experienced the most dramatic symptoms. She consulted with a number of physicians in an effort to determine the cause of her symptoms, which included headaches, nausea, dizziness, numbness, accelerated heart rate, hallucinations, extreme menstrual pain, shortness of breath, itching, sleep disturbances, and loss of memory. She consulted various medical experts to determine the cause of her illness, including gynecologists, internal medicine specialists, heart specialists, and urologists. At various times, Kathryn McGraw suspected or was told she was suffering from multiple sclerosis, gall bladder poisoning, Alzheimer's disease, schizophrenia, and various "female" conditions. She consulted physicians in Garden City and Hutchinson, Kansas; LaJunta and Pueblo, Colorado; and Dallas, Texas. In addition to all of the disease processes Kathryn McGraw suspected for causing her problems, she suspected that the house in which she and her family were living might be contributing to her symptoms. Indeed, at various points in time, Kathryn McGraw suspected the source of her problems may have been the furnace located in the home.
In addition to consulting various physicians in an effort to determine the cause of her illness, Kathryn McGraw also contacted Unger and Peoples Natural Gas Company (Peoples) and requested that they check the furnace in the house. Peoples first checked the furnace in October 1982 and reported that it was operating properly. Again, in October 1985, both Peoples and Unger <
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