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Jones v. St. Charles County11/8/2005
oupe, the director of the parks department for St. Charles County, testified that he visited the property prior to the county's acquisition to evaluate it as a potential parks site. He was aware that horses were kept on the property, and he was aware that fencing existed on the property. Loupe also had prior experience with the containment of animals. During his tenure as parks director for the City of Topeka, Kansas, Loupe maintained a herd of ponies on Topeka park grounds. In his deposition, Loupe testified that ensuring the integrity of the fencing was necessary to keep the ponies from escaping. He stated that if a pony was loose, it could present a safety hazard. Nick Donze, the assistant director of the parks department, also visited the property. John Watts, the owner of RHI, testified that Curt Loupe walked the property and took pictures of the horse pastures.
As previously noted, the report of Deputy Riley stated that the portion of the fence through which the horse escaped was "obviously older wood" that had rotted. A fact-finder could reasonably infer from this evidence that the condition had been present for a length of time such that the county, in its inspection of the property, had constructive notice of the condition of the fence.
As a result of the foregoing, we believe there was sufficient evidence to create a genuine issue of material fact as to the county's constructive knowledge of the dangerous condition. Therefore, the trial court erred in granting summary judgment in favor of the county with respect to count two of plaintiffs' petition.
The judgment of the trial court is affirmed as to count one and reversed and remanded as to count two for further proceedings consistent with this opinion.
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