D.W. v. Bliss

• Decision Date: 03 June 2005
• Docket Number: No. 91,247.,91,247.
• Citation: 112 P.3d 232
• Parties: D.W., Appellant, v. Richard BLISS and Carol Bliss, Appellees.
• Court: Kansas Supreme Court

112 P.3d 232

D.W., Appellant, v. Richard BLISS and Carol Bliss, Appellees.

No. 91,247.

Supreme Court of Kansas.

June 3, 2005.

COPYRIGHT MATERIAL OMITTED

Patrick R. Miller, of Ullman, Dezube & Miller, P.A., of Overland Park, argued the cause and was on the brief for appellant.

Derrick A. Pearce, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Overland Park, argued the cause and was on the brief for appellee Carol Bliss.

The opinion of the court was delivered by LARSON, S.J.:

In this first impression damage action, we must decide if the wife of a criminal offender has a special relationship with a minor, giving rise to her having a duty to warn the minor of the likelihood of being sexually abused by her husband.

We must further decide if liability may be imposed on the wife of a criminal offender under the theory of premises liability, as described by Restatement (Second) of Torts § 314A(3) (1964) for the criminal acts of her husband occurring on real property which they jointly owned and where they both resided.

In answering these questions, we set forth the facts, the history of the litigation, and the rulings of the district court and Court of Appeals; state the standards of review and the contentions of the parties; and analyze the duty to warn and premises liability issues before reaching our conclusions.

Factual Background

D.W. met Richard Bliss in May 1998 while D.W. was waiting for a school bus in his neighborhood. Richard asked D.W. if he would mow Richard's lawn, and D.W. agreed to do so.

During the summer of 1998, D.W. became 15 years old in July and developed a relationship with Richard. The two spent time together playing racquetball, fishing, shopping, watching television in Richard's house, and just talking. Richard gave D.W. gifts and money.

D.W.'s mother initially believed Richard was acting as a mentor to D.W. Richard was active as a leader and mentor in various youth groups and regularly devoted time to such endeavors.

During this time, Richard was married to Carol Bliss, and they resided together in Johnson County. Carol was present during some of the time Richard and D.W. spent together at the Bliss home, but there was little interaction between Carol and D.W., who characterized his relationship with Carol as nonexistent. D.W.'s telephone calls were to Richard; Carol never invited D.W. to the Bliss household. Carol was never involved in D.W.'s activities either inside or outside of the Bliss home.

In the fall of 1998, Richard began having criminal sexual encounters with D.W. Most were outside the Bliss home at the Wolbach Farm, at a duck club in Wyandotte County, and in Bennett Springs, Missouri. Carol never witnessed any of the encounters and denied she knew about them. D.W. did not believe Carol knew the encounters were occurring. Richard and D.W. made every effort to conceal the improper relationship from Carol.

Several months later, Richard hired a prostitute for D.W. Ultimately, the criminal acts perpetrated by Richard became known. As the result of his illicit sexual actions with D.W., Richard pled guilty in Wyandotte County to one count of furnishing alcohol to a minor and one count of aggravated indecent liberties and pled guilty in Johnson County to one count of aggravated indecent liberties.

After the charges against Richard were filed, two men, A.M. and G.S., whom Richard had previously mentored, came forward to D.W.'s family and admitted having sexual relationships with Richard. Deposition testimony clearly showed that neither sexual relationship occurred until both men were adults. Both men met Richard while they were teenagers.

A.M., born in February 1966, met Richard when he was 14 years old through a YMCA mentoring program. He lived in the Bliss home for 2 or 3 months as a sophomore in high school when he had problems with his mother. A.M. began having sexual encounters with Richard after he turned 18 and continued until he was 22. Richard and A.M. continued a friendly relationship after they ceased being involved sexually.

A.M. testified to an incident where Carol started to enter a room where he and Richard were watching a pornographic movie and masturbating each other. The tape was turned off, and Richard met Carol at the door. A.M. knew they talked but did not know what was said. Another time, Carol started down the stairs into the basement where Richard was performing oral sex on A.M. A.M. stated he quickly pulled his pants up, and Carol stopped part way down the stairs and went back up the stairs, saying nothing. A.M. admitted it was speculation on his part as to whether Carol knew about the sexual encounters.

A.M. introduced G.S. to Richard while they were in high school. G.S., born in December 1965, mowed Richard's lawn. After he turned 18, he moved into the Bliss house. G.S. did not begin to have a sexual relationship with Richard until he was 18, and it continued until 1990, when he was 25 years old. After the sexual encounters stopped, he continued to live in the Bliss home for some time and enjoyed a family-type relationship with Richard and the two Bliss daughters.

G.S. testified that while he was living in the Bliss house, there were a number of times when Carol came upstairs to the bedroom and knocked on the closed door when he and Richard were engaged in sexual activity. Richard would go to the door and speak with Carol, but G.S. did not hear the conversation. There was also testimony that Carol found pornography under G.S.'s bed. G.S. testified Carol never witnessed any of the acts and that he and Richard agreed to keep the sexual relationship secret from Carol.

D.W., G.S., and A.M. all testified in their depositions that Richard lied to Carol to prevent her from having knowledge about his sexual encounters with them. In his deposition, Richard claimed Carol had absolutely no knowledge about his sexual relationships. He said he had hidden them for more than 10 years. He denied that Carol had ever given any indication that she knew of his sexual relationships with D.W., G.S., or A.M.

History of Litigation

D.W. brought a civil action against Richard and Carol. D.W. later dismissed with prejudice his action against Richard, leaving Carol as the sole defendant. D.W.'s claims were for negligence, negligent infliction of emotional distress, and defamation by Richard's attorney. D.W. alleged Carol knew about Richard's sexual propensities based on the statements of G.S. and A.M. and should have warned him. D.W. further argued that Carol, as co-owner of the home, had a duty to warn him of the dangerous conditions existing on the property. D.W. finally contended Carol conspired with Richard to harm him by using marital funds to hire attorneys who defamed him by their communications.

Carol, by her answer and summary judgment affidavit, denied any knowledge of Richard's sexual relationships with D.W., G.S., or A.M. until after Richard's arrest on the charges involving D.W. She denied walking in on encounters between A.M. and Richard and stated she routinely knocked on G.S.'s door out of respect for his privacy just like she did with her daughter's doors. She stated it was not unusual for young men to be around the house, as Richard had mentored many during their marriage. She admitted to finding pornography in G.S.'s room but did not equate that to a sexual relationship between G.S. and Richard. She denied D.W. was ever in her care, custody, or control.

Carol moved for summary judgment, contending there was no material evidence she knew Richard was a threat to D.W.; D.W. had never been in her care, custody or control; she had no special relationship with D.W. or Richard giving rise to a duty to warn or protect D.W.; and the claims of negligent infliction of emotional distress, child endangerment, and civil conspiracy failed as a matter of law. D.W. withdrew his claims for negligent infliction of emotional distress and child endangerment, but responded on his claims of negligence and civil conspiracy, stating summary judgment was improper.

District Court's Ruling

The district court granted Carol's motion for summary judgment on all counts. The court stated and held:

"Plaintiff has filed several counts against the defendant Carol Bliss. These counts are based upon three separate duties: one, that Carol Bliss was entrusted with the care of the plaintiff and that this created a duty which was breached by her failing to stop her husband from having sexual relations with plaintiff, two, that as co-owner of the property (house) she has a duty to warn licensees of dangerous conditions which exist on the property, and she failed to make such warnings, and third, that she conspired with her husband to cause harm to the plaintiff by use of marital funds to hire attorneys who defamed plaintiff by their communications.

"The Court has examined each of the cases cited in the parties' briefs, and after said review does find that the Bauswell v. Mauzey, 916 [936] F.Supp. 787 [(D.Kan. 1996)], which was decided by Judge Van Bebber in 1996 does correctly set out the law of Kansas in this area, and application of Bauswell convinces this Court that Carol Bliss is entitled to summary judgment as to all claims against her. Simply the Court finds that no duty existed in this case that could be breached, and therefore no liability can be placed on Carol Bliss. Both the claims as to `special relationships' require that Carol Bliss be in charge or control of either her husband or the plaintiff. No facts suggest this to be the case. Plaintiff was the guest of Mr. Bliss and even if the court finds that Carol Bliss knew of the sexual acts with the other men some 10 years before, the Bauswell case makes it clear that this does not create duty, unless the special relationship exists.

"Further, no facts are present which indicate that Carol Bliss communicated any statements or writings to anyone which can be the basis for the defamation claim. Mere use of...