Walker v. Mustang Enterprises, Inc.

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NOT DESIGNATED FOR PUBLICATION

No. 114,029

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DEBORAH WALKER,
Appellant,

v.

MUSTANG ENTERPRISES, INC., d/b/a HOMETOWN RENTAL,
Appellee.

MEMORANDUM OPINION

Appeal from Cowley District Court; LADONNA L. LANNING, judge. Opinion filed July 1, 2016.
Reversed and remanded with directions.

Carl L. Wagner, of Patterson Legal Group, L.C., of Wichita, for appellant.

Timothy J. Finnerty, Charles E. Hill, and Aaron E. Schwartz, of Wallace Saunders, of Wichita,
for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.

Per Curiam: Deborah Walker sued Mustang Enterprises, Inc., d/b/a Hometown
Rental (Hometown) for negligence after she tripped on a surge protector at the base of a
set of stairs in the store. The district court granted Hometown's motion for summary
judgment, finding Hometown owed no duty to Walker because the surge protector was a
known or obvious danger. Walker appeals from the district court's decision to grant
summary judgment, arguing a material dispute in fact exists that requires submission to a
jury on the issue of whether the danger posed by the surge protector was known or
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obvious. For the reasons stated below, we agree with Walker and reverse the decision of
the district court and remand the matter for further proceedings.

FACTS

On September 12, 2012, Walker went to Hometown to purchase twin-sized
mattresses for her grandchildren. The salesperson led Walker up a set of wooden stairs to
a loft in the back room to show her mattresses, and she agreed to buy two of them. There
is no dispute that the stairs were not intended for regular customer traffic. Customers
generally were not allowed in this area, but staff occasionally took them there to see
merchandise not on display in the showroom.

On their way down the steps, Walker was on the left side of the stairway and the
salesperson was on the right. Walker testified that she and the salesperson were walking
down together, but the salesperson believed he was a few steps ahead of her. Walker said
she was looking down at each step as she was walking down the stairs and did not see
anything on any of the steps. She testified that as she was about to step from the stairs
onto the floor, she was looking "[d]own on the floor ahead of [her]." She also said that
she was looking down where she was going to place her foot and saw nothing on the
floor.

As Walker was stepping to the floor, however, she fell after stepping on the power
box portion of a surge protector that was positioned on the floor against the bottom of the
stairs. No one actually saw Walker as she fell. Walker maintained she did not see the
surge protector until after she fell. After falling, Walker looked around to see what caused
her fall. It was then that Walker saw the surge protector located on the far left side of the
stairway. According to the general manager of the store, employees often plugged
televisions into the surge protector while repairing them in the back room.

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Walker did not recall seeing the surge protector as she walked up the stairs, and no
one in the store warned her it was there. The salesperson who accompanied Walker could
not specifically remember seeing the surge protector while walking up or down the stairs
but testified that he believed there was one there. Neither party took photos of the scene
on the day that Walker fell.

On September 13, 2013, Walker filed a lawsuit alleging Hometown was negligent
for failing to properly maintain the premises in a safe condition, actively creating a
hazard of which it had notice, failing to warn customers on the property about the hazard
or providing alternate routes for them, and failing to eliminate the hazard in a timely
manner.

Hometown filed for summary judgment on January 30, 2015, arguing that because
the surge protector was a known or obvious danger, Hometown owed no duty of care to
Walker and could not be liable for negligence. As part of its supporting evidence,
Hometown submitted a series of photographs from the perspective of someone looking at
the steps while walking down them. These photographs were attached as Hometown
Exhibit C to Hometown's memorandum in support of its motion for summary judgment.

Walker filed a responsive pleading in opposition to Hometown's motion for
summary judgment, arguing that whether the surge protector constituted a known or
obvious danger was a disputed material fact and, therefore, summary judgment was not
appropriate. In an affidavit attached to the pleading she filed in opposition to summary
judgment, Walker specifically denied that the photographs submitted by Hometown
accurately depicted what she saw when she walked down the stairs. Attached to Walker's
affidavit were pictures demonstrating that the surge protector was not visible from the
stairs because it was "nudged up against the bottom of the stairs."

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A hearing on the motion for summary judgment was held on March 25, 2015. In
May 2015, the district court convened a hearing and granted Hometown's motion for
summary judgment from the bench, holding that Hometown owed no duty to Walker
because the surge protector was in plain view. Walker timely appeals to this court.

ANALYSIS

Summary judgment is appropriate only when the pleadings and evidence presented
to the district court show there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. In reviewing the matter, the district court
must resolve all facts and reasonable inferences from the evidence in favor of the party
against whom the ruling is sought. When opposing a motion for summary judgment, an
adverse party must present evidence to establish a dispute as to a material fact. In order to
prevent summary judgment, the facts in dispute must be material to the conclusive issues
in the case. Summary judgment must be denied if reasonable minds could differ as to the
conclusions drawn from the evidence. Drouhard-Nordhus v. Rosenquist, 301 Kan. 618,
622, 345 P.3d 281 (2015). On appeal, we apply the same legal standard as the district
court and review the matter independently, with no required deference to the district
court's judgment. See Cady v. Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014); Smith v.
Kansas Orthopaedic Center, 49 Kan. App. 2d 812, 815, 316 P.3d 790 (2013). We do not
assess witness credibility or weigh evidence, which are duties for the factfinder at trial.
Esquivel v. Watters, 286 Kan. 292, 295-96, 183 P.3d 847 (2008).

In Kansas, a negligence claim requires: (1) the existence of a duty, (2) breach of
that duty, (3) injury, and (4) a causal connection between the duty breached and the
injury sustained. Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052
(2007) (quoting Schmidt v. HTG, Inc., 265 Kan. 372, 396-97, 961 P.2d 677, cert. denied
525 U.S. 964 [1998]). In a general sense, negligence claims present questions of fact for
the jury to determine, not legal questions for the court to decide. Elstun v. Spangles, Inc.,
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289 Kan. 754, 757, 217 P.3d 450 (2009). But the question of whether a duty of care exists
is a legal determination for the court. 289 Kan. at 757 (citing Nero v. Kansas State
University, 253 Kan. 567, Syl. ¶ 1, 861 P.2d 768 [1993]). If the undisputed facts establish
that the defendant did not have a duty to act in a certain way toward the plaintiff, the
court may grant summary judgment against the plaintiff's negligence claim because,
where no duty exists, the defendant is not liable for negligence. Elstun, 289 Kan. at 756-
57.

With regard to the duty of a landowner for potential harm that may be caused to an
invitee, Kansas has adopted the Restatement (Second) of Torts § 343 (1965):

"A possessor of land is subject to liability for physical harm caused to his [or her]
invitees by a condition on the land if, but only if, he [or she]
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger."
(Emphasis added.)

See Scales v. St. Louis-San Francisco Ry. Co., 2 Kan. App. 2d 491, 497, 582 P.2d 300
(quoting Restatement [Second] of Torts § 343), rev. denied 225 Kan. 845 (1978). Section
343A of the Restatement (Second) of Torts, also adopted in Kansas, further limits the
scope of a landowner's duty to an invitee:

"(1) A possessor of land is not liable to his [or her] invitees for physical harm
caused to them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such knowledge
or obviousness." (Emphasis added.) Restatement (Second) of Torts § 343A (1965).

See Scales, 2 Kan. App. 2d at 497-98 (quoting Restatement [Second] of Torts, § 343A).
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Unlike the determination of whether a legal duty exists in a negligence case,
deciding whether a particular condition constitutes a "known or obvious" danger is
generally a factual question reserved for the jury. Nevertheless, summary judgment on
this issue may be appropriate if the undisputed record reflects that the particular condition
constituted a known or obvious danger. If there is no dispute in fact on this issue, the
landowner would be relieved of its general duty to exercise reasonable care in protecting
the invitee from injury under Restatement (Second) of Torts § 343A.

We decide whether a condition is a known or obvious danger based on an
objective test. See Wellhausen v. University of Kansas, 40 Kan. App. 2d 102, 106, 189
P.3d 1181 (2008).

"b. The word 'known' denotes not only knowledge of the existence of the
condition or activity itself, but also appreciation of the danger it involves. Thus the
condition or activity must not only be known to exist, but it must also be recognized that
it is dangerous, and the probability and gravity of the threatened harm must be
appreciated. 'Obvious' means that both the condition and the risk are apparent to and
would be recognized by a reasonable man [or woman], in the position of the visitor,
exercising ordinary perception, intelligence, and judgment." Restatement (Second) of
Torts § 343A, comment b (1965).

In asserting that the presence of the surge protector at the bottom of the stairs was
a known or obvious danger, Hometown provided a series of photos purportedly based on
Walker's descriptions of the placement of the surge protector. Hometown asserts that
these pictures are undisputed evidence that the surge protector was "in plain view as one
descends the steps." In addition to the photographs, Hometown cites Walker's own
statements that she was looking down at the steps as she walked and that she looked
down at the floor as she stepped onto it. Finally, Hometown cites to Walker's statements
that the lighting was adequate and that there were no obstructions that would have
prevented her from seeing the surge protector.
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Given the photographs and deposition testimony presented to the district court in
support of summary judgment by Hometown, the burden shifted to Walker to set forth
specific facts or present evidence showing a genuine dispute of material fact with regard
to whether the presence of the surge protector at the bottom of the stairs presented a
known or obvious risk of danger. In an affidavit attached to the pleading she filed in
opposition to summary judgment, Walker averred that the photographs attached as
Hometown Exhibit C to Hometown's motion for summary judgment did not accurately
depict her view as she was descending the stairs. Instead, Walker stated that the
photographs attached as Walker Exhibit B to her affidavit clearly and accurately
portrayed her view as she was descending the stairs on the date of her fall. Significantly,
the surge protector is not visible from the stairs in the pictures attached to Walker's
affidavit as Exhibit B. Walker further stated that she was unable to see the surge protector
because it was "nudged up against the bottom of the stairs." Walker's statement is
supported by Walker Exhibit C, a picture she attached to her affidavit opposing summary
judgment.

The district court ultimately determined the presence of the surge protector at the
bottom of the stairs was a known or obvious danger. The court's determination in this
regard was based on a finding that the "material facts as alleged by the defendant in its
pleadings" were not disputed by Walker. Based on this determination, the court held
Hometown was relieved of any duty to protect Walker from harm as an invitee under
Restatement (Second) of Torts § 343A.

We are troubled by the district court's finding that the material facts in this case
were undisputed for purposes of granting summary judgment. First, the court relied on
evidence that Walker specifically challenged as inaccurate. Specifically, the court relied
on a series of photographs submitted by Hometown depicting a view of the stairs from
which the surge protector was visible. In support of her allegation that Hometown's
pictures were inaccurate, Walker submitted a photograph that she claims clearly and
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accurately portrayed her view as she was descending the stairs on the date of her fall. The
picture submitted by Walker depicts a view of the stairs from which the surge protector is
not visible.

Notably, both parties agree that their respective pictures were not taken on the day
of the accident. Hometown concedes it staged the scene depicted in the photographs it
submitted to the court but provides no basis for staging the scene as it did, except to say
that it did so based on a description of the scene allegedly provided by Walker, which
Walker expressly disputes. Moreover, Hometown does not identify the height of the
photographer, which certainly would impact what a person would and would not see at
the bottom of the stairs as he or she is descending them. Nor does Hometown identify
where the camera was positioned when the staged photographs were taken. Obviously,
the position of the camera impacts whether the surge protector could be seen and, in turn,
whether it presented a known or obvious danger.

Viewing the evidence presented on summary judgment in favor of Walker, the
nonmoving party, we find a dispute of material fact exists with regard to whether a
reasonable person in Walker's position—exercising ordinary perception, intelligence, and
judgment—would have noticed the surge protector at the bottom of the stairs and the risk
of danger associated with its presence. See Restatement (Second) of Torts § 343A,
comment b (defining "obvious" danger as one where condition and risk of danger posed
by condition would be recognized by reasonable person in position of visitor, exercising
ordinary perception, intelligence, and judgment). Given this dispute in material fact, we
conclude the district court erred by granting summary judgment in favor of Hometown.

Reversed and remanded for further proceedings.

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PIERRON, J.: dissenting. I respectfully dissent. The district court did just what must
be done when it is faced with a motion for summary judgment. Summary judgment is
appropriate when the pleadings and evidence presented to the court show there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. There are undisputed material facts which resolve the issue of whether a
summary judgment is appropriate in this case.

The central question here is whether the surge protector was an open and obvious
danger. The answer is, it was, and summary judgment was appropriate.

The defendant provided a number of photographs of the steps involved, starting
from the top and going to the bottom. In the photographs the surge protector was
"nudged" up against the steps, as was stated by the plaintiff. It was clearly visible all the
way down from the top of the steps to the bottom. The plaintiff also testified that she was
looking down at the steps, as she should have, all the way down to the bottom. There was
no way the plaintiff could have been watching the stairs all the way down, as she
obviously was, and not see the surge protector.

The plaintiff has provided three photographs of the steps, which she claims refute
the defendant's photographs or at least make this a jury question. However, clearly, they
do not.

The plaintiff's first photograph shows the steps from the bottom up with the surge
protector at the bottom. It is not clear how this disputes that which is clearly shown in the
photographs provided by the defendant. This plaintiff's first photo does not show the
steps from the top to the bottom angle, the plaintiff's route down the steps, as do the
defendant's photographs.

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The other two photographs are even less helpful. They do show the steps, at least
partially, from the top to the bottom, but do not show where the surge protector was,
which was left out of the last two photographs. These last two photographs show nothing
of value in determining whether the surge protector was or was not visible to a person
coming down the steps.

If the surge protector was clearly visible, which it was, the defendant is not liable
for the injuries sustained by the plaintiff, as it was an open and obvious danger. The
plaintiff also failed to present any evidence that she was distracted, forgot about the
danger, or could not avoid the danger, such that the defendant would have an affirmative
duty to act. See Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991).

We note the plaintiff does not explain how she missed seeing the surge protector
which was obviously in plain view. She simply states she did not see it. This statement by
the plaintiff does not convert this factual situation to a jury question. A jury would have
no more evidence before it than did the district court and that evidence indisputably
establishes that the district court was correct in granting summary judgment.

I would affirm the district court.