Collins v. American Drug Stores, Inc., 94-2176-JWL.

• Decision Date: 15 February 1995
• Docket Number: No. 94-2176-JWL.,94-2176-JWL.
• Court: U.S. District Court — District of Kansas
• Parties: Benjamin D. COLLINS, Plaintiff, v. AMERICAN DRUG STORES, INC. d/b/a Osco Drug, Defendant.

878 F. Supp. 182

Benjamin D. COLLINS, Plaintiff, v. AMERICAN DRUG STORES, INC. d/b/a Osco Drug, Defendant.

No. 94-2176-JWL.

United States District Court, D. Kansas.

February 15, 1995.

George E. Mallon, George E. Mallon, P.A., Kansas City, KS, for plaintiff.

Hal D. Meltzer, Gregory G. Schultz, Turner & Boisseau, Chartered, Overland Park, KS, for defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

This is a negligence case in which plaintiff slipped and fell on an icy public sidewalk located on the west side of defendant's premises. The matter is currently before the court on defendant's motion for summary judgment (Doc. #19). Defendant argues that it is entitled to summary judgment because, under the facts of this case, it had no legal duty to clear the ice from the public sidewalk where plaintiff slipped and fell. The court agrees and, for the reasons set forth below, defendant's motion for summary judgment is granted.

II. Factual Background

The following facts are either uncontroverted by the parties or, where necessary, are interpreted in a light most favorable to the plaintiff.

Plaintiff's accident occurred on January 2, 1993. On that day, plaintiff's wife drove him to the Osco drug store located at the corner of 10th and Minnesota in Kansas City, Kansas. Plaintiff's wife drove up to the curb near some parking meters on 10th Street at the intersection of 10th and Minnesota. Plaintiff got out of the car, took several steps, and slipped and fell on some ice which had not been cleared from the sidewalk on the west side of defendant's premises. The location where plaintiff fell was a public sidewalk adjacent to defendant's premises. When plaintiff fell he was on the public sidewalk, and was at least 10 to 12 feet from the entrance to the drug store. The ice which had accumulated on the sidewalk had formed naturally as the result of a winter storm and was not created in any manner by actions of the defendant. The ice was created as the result of an ice storm that had ended at approximately 11:00 a.m. and plaintiff's accident occurred at approximately 1:00 p.m. on that same day. The City of Kansas City, Kansas has no municipal code or ordinance that imposes a duty on landowners to remove ice or snow from public sidewalks abutting their property.¹

III. Summary Judgment Standards

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Anthony v. United States, 987 F.2d 670, 672 (10th Cir.1993). The court views the evidence and draws any inferences in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir.1994) (citing Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11). The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

IV. Discussion

To recover for negligence, the plaintiff must prove that defendant had a duty to plaintiff, that defendant breached that duty, that defendant's breach of its duty caused plaintiff's injury, and that plaintiff has incurred damages. See Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983). Actionable negligence must be based on the breach of a duty. Id. at 488, 673 P.2d 86. Whether a duty exists is a question of law. Id.

Plaintiff claims that defendant had a duty to remove any natural accumulation of snow and ice that occurred on the public sidewalk abutting its property within a reasonable time following the storm. Defendant contends that, under the law of Kansas, it did not have a duty to remove natural accumulations of ice or snow that existed on the public sidewalk abutting its property. This court concludes that, if faced with the question, the Kansas Supreme Court would agree with the defendant, which is a position consistent with the overwhelming majority rule.

There are two Kansas cases that have addressed the liability of a property owner for injuries sustained by a plaintiff who slipped and fell on ice or snow on a public sidewalk abutting the property owner's premises. The first of these was Madison v. Key Work Clothes, Inc., 182 Kan. 186, 318 P.2d 991 (1957). In Madison, the plaintiff was an employee of the defendant and had been continuously so employed for about five years. The plaintiff operated a sewing machine in the making of clothing in the defendant's factory in Fort Scott, Kansas. On the morning of January 24, 1956, when the plaintiff walked to the defendant's factory from her home, a block and a half away, it was snowing. It had snowed in the night and the storm had continued, causing the ground to be covered with ice and snow. Id. at 187, 318 P.2d 991.

The defendant's factory faced south on Wall Street in Fort Scott. In order to enter the factory on her way to work, the plaintiff had to cross Wall Street. After crossing the street, she had to cross a public sidewalk abutting the south side of the factory. While crossing the sidewalk the plaintiff slipped and fell and suffered broken bones in her leg and hip. The sidewalk was adjacent to the south wall of defendant's factory and was 11 feet 5¾ inches wide from the curb of the street to the wall. Id.

Madison was a worker's compensation case in which the court had to determine whether the injuries to the plaintiff arose out of and in the course of her employment. The court found that under the worker's compensation statutes, where an employee sustains injuries occurring while she is on her way to assume the duties of her employment, the proximate cause of which is the employer's negligence, they are injuries arising out of and in the course of employment. Thus, the question for the court was whether there was negligence on the part of defendant that was the cause of plaintiff's injuries. Id. at 192, 318 P.2d 991.

The Madison court affirmed the trial court's finding that the defendant was not negligent. The court stated that "as a general rule there is no absolute duty to keep public sidewalks free from ice or snow at all times. Where the precipitation is recent or continuous, the duty to remove such obstruction as it forms cannot be imposed, and the dangers arising therefrom are viewed as the normal hazards of life, for which no owner or person in possession of the property is held responsible." Id. at 193, 318 P.2d 991.

Although this court finds the Madison decision instructive on the issue of a property owner's duty to remove naturally accumulated snow and ice from an abutting public sidewalk, it is factually distinguishable from the present case. In finding that the defendant did not breach any duty by failing to keep the public sidewalk abutting its property clear of ice and snow, the Madison court relied on the fact that it was snowing before, during and after the time of plaintiff's accident. Id. at 193, 318 P.2d 991. Thus, Madison clearly stands for the proposition that a property owner has no duty to keep an abutting sidewalk clear of naturally accumulating ice and snow while a storm is in progress. Such a rule makes perfect sense, as a contrary finding would create nearly an impossible burden on landowners with abutting public sidewalks. However, Madison does not discuss, and leaves open the question of, whether a property owner may have a duty to clear naturally accumulated ice and snow from an abutting public sidewalk at some point after the storm which created the ice and snow ends.

This court finds the question of whether such a duty exists was answered, in the negative, by the decision of the Kansas Court of Appeals in Wilson v. Goodland State Bank, 5 Kan.App.2d 36, 611 P.2d 171 (1980). In that case, the plaintiff was injured while on her way to work. She had parked her car in front of the defendant's bank building, which was on the same side of the street as plaintiff's place of employment. After parking her car, the plaintiff walked across the driveway in front of the bank building. The driveway had been constructed across the sidewalk to allow access for automobiles by the bank's patrons using its drive-up facility. As the plaintiff walked on this slanted ramp portion of the sidewalk, she fell on a patch of ice and broke her leg. Id. at 36, 611 P.2d 171.

The Wilson court upheld the trial court's granting of a directed verdict, stating as follows:

The general rule in Kansas is that an abutting property owner has no duty to keep public sidewalks free from ice and snow at all times. Madison v. Key Work Clothes, 182 Kan. 186, 193, 318 P.2d 991 (1957). Some jurisdictions, while recognizing the above rule, find an exception where ice does not come from natural sources, but rather is artificially created by accumulation and discharge of water from the landowner's property which causes a hazardous condition. See Lenz v. City of Minneapolis, 283 Minn. 180, 183, 167 N.W.2d 22 (1969). Accord, Pritchard v. Mabrey, 358 Mass. 137, 260 N.E.2d 712 (1970); Strandness v. Montgomery Ward, 199 N.W.2d 690 (N.D.1972).

Appellant cannot avail herself of these authorities because she has made no showing that the ice she slipped upon was the result of the bank allowing water to accumulate or be discharged.

The evidence in this case is insufficient as there must be a causal relationship established between the discharge of the water and the formation of the ice. See Lattimer v. Frese, 246 N.W.2d 255 (Iowa 1976); Callwood v.

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