dissenting: I would affirm the Court of Appeals’ decision reversing the district court’s order granting summary judgment to the City of Arkansas City.
In order to grant summary judgment in favor of the City, there cannot be a genuine issue of material fact related to the questions of whether the City’s improvements in 2000 to the levee (1) constituted maintenance of die original dike and (2) were “in accordance with the plans and specifications” referenced in the 1935 easement. As the majority discusses, the City establishes the first requirement by offering its expert’s conclusion that the 2000 improvements constituted “maintenance.” The Brutons do not adequately controvert that conclusion.
The City does not, however, establish the second requirement; there remains a genuine issue of material fact regarding whether the maintenance was in accordance with the 1935 plans and specifications.
The record establishes very little about the 1935 plans and specifications. The typical sections are the only written evidence of the original contracting parties’ intent regarding “plans and specifications.” According to the City’s consulting engineer, Typical Section No. 3 describes the placement of the levee embankment and the borrow pit and indicates that the area between the riverward toe of the levee embankment and the northern limit of the borrow pit is a seepage berm and an integral part of the levee. In other words, *850the information it provides regarding plans and specifications is limited. The other source of specifications is the levee itself. The City’s consulting engineer reported many of the specifications of the preimprovement structure, including features and dimensions, and explained changes in the levee system.
In the initial report from the City’s consulting engineer dated August 9,2004, as noted in some detail by the majority, the changes to th.e structure and the new features are explained. The improvements included adding a toe drain, raising the crest elevation of the river embankment, flattening the levee embankment slopes, adding protective material such as riprap, filling the sandpit, constructing a back-up levee, and constructing a clay-filled inspection trench along the riverside toe. It was noted that these changes were necessary because “just filling the area back to original grade” was insufficient to accomplish the purpose of the original levee. Additionally, it is noted: “In this case maintenance required constructing a backup levee .... Maintenance to fulfill the stated purpose of the levee is not restricted to the actual structure itself.” The necessity to make these improvements in order to accomplish the purpose of the levee is a repeated theme in the report.
In the report dated September 8, 2004, the expert notes that the centerline of the existing levee differs from that of the 1935-36 levee system but does not cause the levee embankment to come closer to the Brutons’ house. Next, the addition of the toe drain is described as a pei-forated pipe surrounded by filter gravel; again it is noted that the toe drain does not cause the system to use additional land beyond the original easement. Finally, many of the improvements are again detailed, with the ultimate conclusion being drawn that a new levee was not created. The improvements were “instead a concerted effort to correct the deficiencies that have threatened the city for many years by incorporating additional features into and onto the existing levee . . . .” (Emphasis added.) Once again, nowhere in the report does the expert conclude that these new features are in accordance with the 1935 plans and specifications. Rather, the statement repeated throughout the report is that the improvements were consistent with the purpose of the original easement.
*851The report of October 1, 2004, is similar. Improvements are described in some detail with explanations of why these improvements are necessary to insure the integrity of the levee. Repeatedly, it is emphasized that Typical Section No. 3 is the model of construction, that the improvements do not exceed the area covered by the original easement, and the work “was performed to maintain the purpose of the levee/dike.” There is recognition that the assistance of Typical Section No. 3 is limited and based upon approximations. Again, there is no statement that the improvements are consistent with the 1935 plans and specifications.
Based upon these reports, in the final installment of its serial statements of uncontroverted facts, the City establishes that the improvements added .914 acres of embankment, the height increased 11 feet, and the riverside width increased 103 feet.
Never does the expert state that these improvements are consistent with the 1935 plans and specifications. Left unanswered is the question of how building a new back-up levee, adding a toe drain, raising the crest elevation, flattening the slope of the banks, adding new features, and doing all of the other improvements can be considered to be in accordance with the 1935 plans and specifications.
Despite this void, the majority concludes summary judgment is appropriate. Apparently, the majority believes that an expert opinion regarding this question is required. Yet, the majority approves summary judgment even though the City’s expert, despite repeated opportunities, never specifically used the wording that the improvements are in accordance with the 1935 plans and specifications.
To reach the conclusion that the improvements are in accordance with the 1935 plans and specifications and determine that summary judgment is appropriate, the majority must weigh the facts. The majority relies upon the conclusions of the City’s expert that the improvements did not exceed the footprint of the easement, did not bring the levee closer to the Brutons’ house, were maintenance, and were consistent with the original purpose of the easement, i.e., to prevent flooding. The majority disregards uncontroverted evidence that the improvements changed the levee’s el*852evation, slope, and width and added features including a new dike. These conclusions, while factually relevant to the ultimate question of whether the improvements are in accordance with the 1935 plans and specifications, do not answer the ultimate question and that question can only be answered by weighing evidence. An issue of fact remains.
The alternative justification for granting summary judgment is to conclude that an expert opinion is required to establish that the improvements are not in accordance with the 1935 plans and specifications, and the Brutons do not offer an expert opinion. In light of the nature of the evidence in this case, such an expert opinion is not required. “[T]he well-established test for determining whether expert testimony is required is whether the subject matter is too complex to fall within the common knowledge of the jury and is ‘beyond the capability of a lay person to decide.’ [Citations omitted.]” Williamson v. Amrani, 283 Kan. 227, 245, 152 P.3d 60 (2007). Lay members of a jury can determine without expert assistance whether improvements are in accordance with the plans and specifications of a structure when the improvements add approximately an acre to the bulk of a levee, raise the crest 11 feet, increase the width 103 feet, change the center fine, and add new features to the original levee.
Summary judgment should have been denied. A jury should weigh the evidence and determine whether the improvements constituted maintenance in accordance with the 1935 plans and specifications.
Nuss and Beier, JJ., join in the foregoing dissenting opinion.