Cunningham v. Braum's Ice Cream & Dairy Stores, 89,944.

• Decision Date: 12 December 2003
• Docket Number: No. 89,944.,89,944.
• Citation: 276 Kan. 883,80 P.3d 35
• Parties: BARBARA CUNNINGHAM and WANDA YANDELL, Appellants, v. BRAUM'S ICE CREAM and DAIRY STORES, Appellee.
• Court: Kansas Supreme Court

276 Kan. 883

80 P.3d 35

BARBARA CUNNINGHAM and WANDA YANDELL, Appellants, v. BRAUM'S ICE CREAM and DAIRY STORES, Appellee.

No. 89,944.

Supreme Court of Kansas.

Opinion filed December 12, 2003.

Patrick C. Smith, of Loy Law Firm, L.L.C., of Pittsburg, argued the cause and was on the brief for appellants.

John I. O'Connor, of The Advocates Group, LLC, of Pittsburg, argued the cause, and Troy A. Unruh, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.:

Plaintiffs Barbara Cunningham and Wanda Yandell ask us to reverse the district court's summary judgment in favor of defendant Braum's Ice Cream and Dairy Stores (Braum's) in this personal injury action. They sued Braum's after its employees shooed them out of the Parsons ice cream store and, as it turned out, into the path of a tornado. Cunningham and Yandell were injured while driving home, when the tornado threw a truck into their car.

We must decide whether Braum's owed Cunningham and Yandell a legal duty to inform them of a tornado warning and to offer them shelter from the storm.

Summary judgment is appropriate when there remains no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. K.S.A. 2002 Supp. 60-256(c); see Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).

In this negligence action, the first element Cunningham and Yandell must prove is the existence of a duty of care owed them by Braum's. The question of whether a duty exists is a question of law, and the district court's decision that there was no duty under the circumstances presented is reviewable by this court de novo. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983). Both the district court and this court are required to view the available evidence in the light most favorable to the nonmoving party, i.e., Cunningham and Yandell. All facts and inferences that may reasonably be drawn from that evidence must be drawn in their favor. Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999).

With this standard in mind, the evidence shows that Braum's employees were aware at the time they told Cunningham and Yandell and other customers to leave the store that there was a tornado warning in effect. Braum's employees also were aware, by means of telephone calls from persons outside the store, that there were reports of a tornado sighting in the area.

Braum's has an emergency action plan. Although no copy of the plan is included in the record, Braum's admits that the plan states: "[I]f a tornado is sighted, or a Civil Defense warning sounds, anyone not wishing to leave should be directed to the "milk room." The milk room is an interior refrigerated area inside the store.

Again, viewing the evidence in the light most favorable to Cunningham and Yandell, we accept for purposes of this appeal Cunningham's and Yandell's deposition testimony that Braum's employees told them only that a storm was coming, not that there was a tornado warning. The parties agree that they were not told that a tornado had been sighted in the area or that customers had the option of remaining inside the store and going into the milk room. Without this information, Cunningham and Yandell left the Braum's store at the employees' insistence. They heard no sirens sounding at the time, and they observed nothing ominous about the weather until it was too late. Cunningham and Yandell advance two arguments to support the existence of a duty on these facts.

The first argument is that this matter should be decided under Kansas law governing premises liability and that Braum's employees failed to abide by the requirement that they act with reasonable care in all of the circumstances. See Jones v. Hansen, 254 Kan. 499, Syl. ¶ ¶ 2, 3, 867 P.2d 203 (1994).

Second, they argue that a duty arose under the Restatement (Second) of Torts (1964), quoting § 323 and citing § 324A.

We address each of these arguments in turn.

Premises Liability

Cunningham and Yandell argue that Braum's had a duty as the possessor of land to warn them of the approaching tornado because it was a foreseeable hazard. The fact that their injuries actually occurred off of the premises is of no consequence, in their view, because the defendant's negligence consisted of the failure to warn and offer shelter to them while they were still in the store.

Historically Kansas law provided that the duty owed by a possessor of real property to an entrant upon the property was dependent upon the status of the entrant. We eliminated common-law distinctions between duties owed to licensees and invitees and set up reasonableness of action and foreseeability of injury as the foundations of premises liability in Jones, 254 Kan. at 509. We stated in Jones:

"The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that are to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all circumstances are the foreseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition of the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection." 254 Kan. at 509-10.

Jones concerned an injury occurring on the subject premises. Braum's argues that Kansas law does not create any duty to warn a customer of hazards off the premises and that we should not extend the rule of Jones to situations in which the danger is far removed from the property. We agree that the ruling sought by Cunningham and Yandell would require such an extension. See DiPietro v. Cessna Aircraft Co., 28 Kan. App. 2d 372, 377, 16 P.3d 986 (2000) (property owners have duty of ordinary care to "maintain premises" used by customers in reasonably safe condition); Collins v. American Drug Stores, Inc., 878 F. Supp. 182, 186 (D. Kan. 1995) (Kansas property owner has no duty to keep abutting public sidewalks free from natural accumulation of ice, snow).

Cunningham and Yandell direct our attention to several cases from other jurisdictions dealing with hazards on property adjacent to the subject premises. Banks v. Hyatt Corp., 722 F.2d 214, 225-27 (5th Cir. 1984) (hotel had duty to warn or protect guest from mugging outside entrance); Stephens v. Bashas' Inc., 186 Ariz. 427, 431-32, 924 P.2d 117 (Ct. App. 1996) (warehouse had duty to provide parking to delivery truck driver injured after parking on public street; safe means of ingress and egress required); Ollar v. George's Place, 269 Ark. 488, 601 S.W.2d 868 (1980) (restaurant had duty to customer injured on adjoining parking lot); Southland Corp. v. Superior Court, 203 Cal. App. 3d 656, 666-68, 250 Cal. Rptr. 57 (1988) (whether convenience store had sufficient control over adjacent lot, whether criminal assault foreseeable questions for jury); Perkins v. Byrnes, 364 Mo. 849, 269 S.W.2d 52 (1954) (whether resort negligent in warning guests of danger of flooded river adjacent to property a matter for jury); Piedalue v. Clinton Elem. Sch. Dist. No. 32, 214 Mont. 99, 103-05, 692 P.2d 20 (1984) (former owner of irrigation ditch had duty to warn motorist entering adjacent trailer park of dangerous condition); Fuhrer v. Gearhart by the Sea, Inc., 306 Or. 434, 441-42, 760 P.2d 874 (1988) (trier of fact to determine whether resort unreasonable for failing to warn guests of ocean riptides or otherwise provide protection in specific circumstances). Braum's correctly points out that these cases are distinct because they generally involve static risks on adjoining property. We reject these cases as persuasive authority.

Braum's, in turn, cites cases that also are not particularly useful. One is Bradley v. Board of Butler County Comm'rs, 20 Kan. App. 2d 602, Syl. ¶ 5, 890 P.2d 1228 (1995), in which our Court of Appeals held that neither a city nor a county in this state has a duty to warn its citizens of approaching severe weather. Our court had reached a similar result in Griffin v. Rogers, 232 Kan. 168, 175, 653 P.2d 463 (1982), based on a general policy that governmental entities and officers owe a duty to the public at large and not to particular individuals. See Bradley, 20 Kan. App. 2d at 606-07.

Only one case recognizing a duty to warn customers of a commercial establishment about severe weather off premises has been cited and discussed by the parties: Mostert v. CBL & Associates, 741 P.2d 1090 (Wyo. 1987). Our research reveals no other case of this type.

In Mostert, members of the Mostert family were attending a movie in a Cheyenne, Wyoming, shopping mall theater when storms moved into the area. Severe thunderstorm, flash flood, and tornado warnings were issued; the weather became progressively worse, and local emergency officials recommended that citizens stay indoors. The theater management was aware of the warnings and of severe flooding but did not pass this information along to the Mosterts and other patrons watching the movie. The Mosterts left the theater after the movie ended and, approximately 2 miles into their journey, were caught in floodwaters. During the family's attempted escape from their vehicle, the Mosterts' daughter drowned.

When the Mosterts' case reached the Wyoming Supreme Court, the court recognized the traditional rule that a landowner has no duty to warn an invitee of risks off of the landowner's premises. It nevertheless chose to depart from it. The court applied factors drawn from Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), a leading case on mental health professionals' duty to warn potential targets of violent patients, to determine that a duty existed. The factors were:

". . . `(1) [t]

...