Bowers v. Ottenad
| Decision Date | 05 December 1986 |
| Docket Number | No. 57534,57534 |
| Citation | 729 P.2d 1103,240 Kan. 208 |
| Parties | Betty BOWERS, Appellant, v. Richard OTTENAD and Gerald D. Petersen, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The traditional common-law doctrine of premises liability based upon the status of the party injured or damaged as a trespasser, licensee, or invitee is approved and confirmed as the law of this state.
2. In jurisdictions where an active negligence exception to the common-law premises liability doctrine is recognized, the term active negligence as opposed to passive negligence does not refer to acts of commission as opposed to acts of omission, but refers to activities carried on upon the premises as opposed to the condition of the premises. When liability is predicated upon the actions of the occupier of the premises as opposed to the condition of the premises, liability may arise from either an act of commission or an act of omission.
3. When a licensee upon property is injured or damaged by the activity of the occupier of the premises, the duty owed to such licensee is one of reasonable care under all the circumstances.
4. An active negligence exception to the premises liability doctrine, as more fully explained in the opinion, is recognized as the law in Kansas and when a licensee, whose presence is known or should be known, is injured or damaged by activity conducted upon the property by the occupier of the property, the duty owed to such person is one of reasonable care under the circumstances. When the injury or damage results from the condition of the premises as opposed to the activity thereon, the duty of the occupier to the licensee is only to refrain from willfully or wantonly injuring the licensee.
5. Prior cases refusing to recognize an active negligence exception to the premises liability doctrine are overruled to the extent that they are inconsistent with the views expressed in the opinion.
Richard N. Roe, of Lowe, Terry & Roberts, Olathe, argued the cause and was on the briefs, for appellant.
Paul Hasty, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Chtd., Overland Park, argued the cause, and Jeffrey L. Lauersdorf, of the same firm, was with him on the brief, for appellee Richard Ottenad.
Thomas R. Buchanan, of Shook, Hardy & Bacon, Overland Park, and Timothy M. O'Brien, of the same firm, and Bradley McTavish, Kansas City, Mo., were on the briefs, for appellee, Gerald D. Petersen.
Dan L. Wulz, of Bryan, Lykins, Hejtmanek, Hulsey & Wulz, P.A., Topeka, was on the brief, for Kansas Trial Lawyers Ass'n, amicus curiae.
Marla J. Luckert, of Goodell, Stratton, Edmonds & Palmer, Topeka, was on the brief, for Kansas Ass'n of Defense Counsel, amicus curiae.
This appeal is before the court for review of the unpublished opinion of the Kansas Court of Appeals in Bowers v. Ottenad, (1986). --- Kan.App. ---, 715 P.2d 1298. Betty Bowers filed this action to recover damages for extensive burns sustained in an accident at the home of Richard and Joyce Ottenad. The trial court found as a matter of law that Bowers was a licensee upon the premises and the jury, failing to find any wanton conduct upon the part of the defendants, returned a verdict for the defendants. The Court of Appeals affirmed the trial court judgment and we granted the petition for review filed by Bowers.
The facts are not in dispute. On the evening of March 13, 1982, the gourmet group of an organization known as the Johnson County Young Matrons, Inc., gathered for dinner at the home of Richard and Joyce Ottenad. As was their custom, the gourmet group met periodically at the home of one of their members for a social gathering of dinner and drinks. On each occasion three members of the group would act as co-hostesses for the evening, one of whom was an occupant of the premises where the event was to be held. On the fateful evening, plaintiff/appellant Betty Bowers, Alice Petersen and Joyce Ottenad were the co-hostesses. Following dinner, Bowers and appellees Gerald D. Petersen and Richard Ottenad were preparing flaming Irish coffees to be served as after dinner drinks. One hundred ninety proof grain alcohol was being used by the trio to create the flame upon the coffee. While mixing the coffees, the vapors from the alcohol bottle ignited and fire burst forth in the form of a "fireball." The flames struck appellant and she suffered severe burns.
In this action filed against Mr. and Mrs. Ottenad and Dr. and Mrs. Petersen, the court granted summary judgment in favor of Joyce Ottenad and Alice Petersen, the other two co-hostesses. No appeal is taken from that judgment and they are not involved in the case now before this court. The trial court also ruled as a matter of law that appellant was a licensee for the purposes of establishing the duty owed to her under the premises liability or status classification doctrine and therefore was not entitled to recover unless the jury found that Richard Ottenad or Gerald Petersen was guilty of wanton negligence resulting in appellant's injuries. No contention was made that the injuries resulted from willful conduct of the defendants. The jury rendered a verdict for the defendants and Mrs. Bowers has appealed. The Court of Appeals, based upon our existing case law, affirmed the trial court judgment and we granted the appellant's petition for review.
Appellant raises several issues, only two of which require consideration here. First, appellant contends that this court should abandon the common-law premises doctrine which establishes liability of a landowner or occupier of real property based upon the status of the injured party and adopt the traditional negligence standard of reasonable care under all the existing circumstances, at least to the extent of adopting such standard for licensees. Second, it is asserted that if this court does not consider it appropriate to abandon the existing premises doctrine we should follow the active negligence exception recognized by this court in Montague v. Burgerhoff, 150 Kan. 217, 92 P.2d 98 (1939).
As to the first issue, whether we should abandon the common-law doctrine of premises liability based upon the status of the injured party as a trespasser, licensee, or invitee, much has been written in recent years. This court has been asked on at least four occasions to abandon the premises liability or status classification doctrine of landowner or occupier liability and on each occasion a majority of the court has declined to do so. Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982); Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978); Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978); Frazee v. St. Louis-San Francisco Rly. Co., 219 Kan. 661, 549 P.2d 561 (1976). We see nothing to be gained by rehashing the pros and cons of the argument as they are adequately covered in our existing cases. Suffice it to say, a majority of the members of this court remains of the opinion that there are compelling reasons not to depart from the existing doctrine. The traditional common-law doctrine of premises liability based upon the status of the party injured or damaged as a trespasser, licensee, or invitee is approved and confirmed as the law of this state. We therefore decline to overrule the cases cited. For those interested in additional authority on the subject, comprehensive annotations may be found at 32 A.L.R.3d 508 and 22 A.L.R.4th 294. See also Westerbeke, Survey of Kansas Law: Torts, 27 Kan.L.Rev. 321, 334 (1979); and Comment, Torts: Landowner Liability and Attractive Nuisance--Kansas Rejects the Modern Trend, 18 Washburn L.J. 190 (1978).
Next, appellant argues, in the alternative, that if this court does not see fit to abolish the premises liability or status classification doctrine, we should at least recognize and apply the so-called "active negligence" exception to licensees upon the premises.
A number of jurisdictions, which have retained the common-law status classification or premises liability doctrine, have recognized and adopted an exception in the case of licensees based upon what is often called a distinction between active and passive negligence. At the outset, a clarification of those terms would appear to be appropriate. The terms are often confused and some courts have recommended that the distinction should not be couched in language of active as opposed to passive negligence, but in terms of whether the condition of the premises is the cause of injury or damage as opposed to that caused by the activity being carried on upon the premises. In Ragnone v. Portland School Dist. No. 1J, 291 Or. 617, 633 P.2d 1287 (1981), the court explained the dichotomy:
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