Britt v. Allen County Community Jr. College, 52998

• Decision Date: 15 January 1982
• Docket Number: No. 52998,52998
• Citation: 230 Kan. 502,638 P.2d 914
• Parties: , 2 Ed. Law Rep. 245 Ella May BRITT, Appellant, v. ALLEN COUNTY COMMUNITY JUNIOR COLLEGE, et al., Appellees.
• Court: Kansas Supreme Court

Page 914

638 P.2d 914

230 Kan. 502, 2 Ed. Law Rep. 245

Ella May BRITT, Appellant, v. ALLEN COUNTY COMMUNITY JUNIOR COLLEGE, et al., Appellees.

No. 52998.

Supreme Court of Kansas.

Jan. 15, 1982.

Syllabus by the Court

1. The enactment of the comparative negligence statute, K.S.A. 60-258a, did not affect or change the basic duty of a landowner or possessor of premises owed to those persons entering the premises.

2. The possessor of premises on which a licensee enters owes the licensee a limited duty to refrain from willfully or wantonly injuring the entrant.

3. After considering the changes wrought by the advent of comparative negligence in Kansas, this court continues to refuse to recognize an active negligence exception to the traditional landowner's duty to a licensee.

4. One entering premises on invitation does not enjoy the status of an invitee unless the entry is made in connection with the business or purposes of the owner.

5. Proof of a willingness to injure is not necessary in establishing gross and wanton negligence. This is true because a wanton act is something more than ordinary negligence but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.

Michael D. Gragert, Wichita, argued the cause and was on brief for appellant.

Christopher Randall of Turner & Boisseau, Chartered, Wichita, argued the cause and was on brief for appellees.

Robert E. Keeshan of Scott, Quinlan & Hecht, Topeka, was on amicus curiae brief for Kansas Trial Lawyers Association.

FROMME, Justice:

Plaintiff Ella May Britt was injured on the premises of the Allen County Community Junior College when a piano was being moved. The piano overturned and struck her foot resulting in injuries.

At the time of the occurrence, Britt was a sales supervisor for Shaklee, a company which merchandises nutritional, household, and skin care products. These products are sold and distributed at meetings arranged by Shaklee sales representatives. The income of these sales representatives and of the supervisors, such as Britt, is based on a percent of total sales. In September, 1977, Britt and another supervisor for the company set up a booth at the Allen County Fair. After the fair was over, Britt and the other supervisor decided to follow up the contacts they had made at the fair by holding a meeting at the defendant college.

Britt called the college, and the lecture hall was scheduled for her use at no charge. She arranged for a speaker to talk on the subject of good nutrition and notified the general public by telephone calls and newspaper advertising of the meeting at the college. One of the purposes of the meeting was to let the audience know about Shaklee products. These would be on display in the lecture hall and Britt expected an increase in sales of her products as a result of the meeting.

Britt and her sister arrived at the lecture hall on the appointed day in advance of the meeting time. They had brought various Shaklee products with them to be displayed on tables. They discovered there were no tables on which to display their products. Britt contacted a college official for assistance. Glenn Delaplain, a custodian, arrived and asked Britt if he could help. In addition to moving tables into the lecture hall, Delaplain was asked to move a piano from the center of the room to an adjacent wall. While the piano was being moved it overturned striking plaintiff on the foot, resulting in injuries. This action was then filed and discovery was completed.

On motion of defendant the trial court determined as a matter of law that plaintiff was a licensee and that there was no evidence that defendant's agent, Delaplain, acted in a wanton or reckless manner. The district court granted summary judgment in favor of the defendants and plaintiff appeals.

The plaintiff-appellant first contends the adoption of comparative negligence, as codified in K.S.A. 60-258a, has modified the traditional rules on the duties of landowners to entrants on land. The rules on premises liability which are dependent on the status of persons entering the premises were summarized in Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978), as follows:

"Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Rly. Co., (219 Kan. 661, 549 P.2d 561) supra. See also PIK 2d (Civil) 12.20 and 12.21.)

"A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring him. (Graham v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750; Weil v. Smith, 205 Kan. 339, 469 P.2d 428. See also PIK 2d (Civil) 12.10 and 12.11.) The parties agree that Rolf Gerchberg was a licensee under the facts of this case.

"Under the law in this jurisdiction a social guest has the status of licensee and his host owes him only the duty to refrain from wilfully, intentionally, or recklessly injuring him. (Ralls v. Caliendo, 198 Kan. 84, Syl. P 1, 422 P.2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P.2d 945.)

"An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee's safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated. (Weil v. Smith, supra, Syl. P 3; Graham v. Loper Electric Co., supra, p. 563 (389 P.2d 750). See also PIK 2d (Civil) 12.01 and 12.02.)" 223 Kan. at 448, 449, 576 P.2d 593.

In the subsequent case of Zuther v. Schild, 224 Kan. 528, 581 P.2d 385 (1978), written by Mr. Justice Miller, this court again considered discarding the traditional classifications of entrants on the premises of another and declined to do so. The case involved a licensee.

Gerchberg and Zuther were both decided in 1978, but no question was raised in either of those cases concerning comparative negligence. The comparative negligence statute, 60-258a, was enacted in 1974, and in pertinent part reads:

"(a) The contributory negligence of any party in a civil action shall not bar such party or said party's legal representative from recovering damages for negligence resulting in death, personal injury or property damage, if such party's negligence was less than the causal negligence of the party or parties against whom claim for recovery is made, but the award of damages to any party in such action shall be diminished in proportion to the amount of negligence attributed to such party."

Appellant Britt argues that the enactment of the above statute modified a landowner's duty to licensees who have entered on the premises. The argument is somewhat hard to follow but she states the existing duty owed to licensees under the traditional status rules results in a blanket immunity to the owner or possessor of the premises. She concludes this is contrary to the purposes of comparative negligence, as found in the statute and in the developing case law. We do not agree.

As pointed out in Brown v. Keill, 224 Kan. 195, 197, 580 P.2d 867 (1978), the purposes of the comparative negligence statute, K.S.A. 60-258a, were expressed in the enacting clause when passed by the legislature. The first purpose expressed in the enacting clause is "abolishing contributory negligence as a bar to recovery" and the second is "providing for the awarding of damages on the basis of comparative negligence." L.1974, ch. 239. This statute treats and is limited to the extent of liability for damages arising from an occurrence. Its purpose is to distribute liability on the basis of causal fault. It does not concern the nature and extent of the duty owed. It concerns itself with the "all or nothing" philosophy which previously attended tort negligence actions when the contributory negligence of the plaintiff, however slight, foreclosed all defendant's responsibility for plaintiff's injuries. The enactment of the comparative negligence statute, K.S.A. 60-258a, did not affect or change the basic duty of a landowner or possessor of premises owed to those persons entering the premises.

An analogous holding was expressed by the Court of Appeals in Taplin v. Clark, 6 Kan.App.2d 66, 69, 626 P.2d 1198 (1981), where that court concluded the comparative negligence statute did not change the basic duties required of drivers and passengers in automobile tort litigation.

Turning to the second issue, we are again asked to consider the premises liability doctrine and repudiate the status categories recognized in Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593, and Zuther v. Schild, 224 Kan. 528, 581 P.2d 385. In Gerchberg the court expressed its concern as to the possible effects which would arise in case of repudiation. We said:

"If the traditional classifications are discarded the legal distinctions which have heretofore governed the courts in imposing a particular standard of care are also discarded. In such case the standard, reasonable care under all the circumstances, would have to be applied by the jury to the specific facts of each case. Can a lay jury reasonably be expected to consider the...