Gardin v. Emporia Hotels, Inc., 88,788

• Court: Court of Appeals of Kansas
• Writing for the Court: PIERRON, J.
• Citation: 31 Kan.App.2d 168,61 P.3d 732
• Parties: ALFRED L. GARDIN, Appellant, v. EMPORIA HOTELS, INC. and SEAN CASSIDY, Appellees.
• Docket Number: No. 88,788,88,788
• Decision Date: 24 January 2003

31 Kan.App.2d 168
61 P.3d 732

ALFRED L. GARDIN, Appellant,
v.
EMPORIA HOTELS, INC. and SEAN CASSIDY, Appellees

No. 88,788

Court of Appeals of Kansas

Opinion filed January 24, 2003.

Michael C. Helbert, of Law Offices of Michael C. Helbert, of Emporia, for the appellant.

Brian G. Boos, of Gehrt & Roberts, Chartered, of Topeka, for the appellees.

Before BEIER, P.J., PIERRON, J., and PADDOCK, S.J.

PIERRON, J.:

Alfred L. Gardin appeals the district court's summary judgment in favor of Emporia Hotels, Inc. (Emporia Hotels).

Emporia Hotels owns and operates the University Inn (motel). Mike Patel became the manager of the motel when Emporia Hotels purchased it in December 1997. Patel regularly worked at night between 11 p.m. and 6 a.m.

31 Kan.App.2d 169

From the motel's front desk, Patel could see the enclosed glass entrance to the lobby. Patel kept the doors to the lobby locked during his shift. If a person looked like he or she wanted to rent a room after hours, Patel would unlock the doors to the entrance and admit the person to the lobby

There was little evidence of any prior crimes taking place at the motel. Until the date of the incident in this case, October 31, 1998, Patel had never had any problem with criminal activity at the motel. Furthermore, Patel did not remember ever receiving a request for help from a motel guest after 11 p.m.

Prior to this incident, Patel had rented rooms to George Phillips of Worldwide Readers Service, Inc. (Worldwide) sales group on one or two occasions. Phillips usually rented three rooms at a time and would have three or four people in each room. Phillips rented rooms from Patel on the night of the incident. Sean Cassidy was one of the sales group members who was staying at the motel that night.

At around 11 p.m. on October 30, 1998, Gardin, and his brother, Maurice, went to a bar. When the bar closed at 2 a.m., Gardin waited for Maurice outside. Maurice came out of the bar accompanied by two women with whom he had been dancing. Maurice told Gardin he wanted to get together with one of the women. The woman said she needed to pick up a car seat. In Maurice's car, the brothers followed the women to the parking lot of the motel. Gardin had never been to the motel before.

The woman told Maurice she would return as soon as she retrieved the car seat. The women then appeared to go into a motel room. A few minutes later, two men appeared and told Gardin and Maurice to leave because the women did not want to go with them. Maurice grew angry and an argument ensued. Gardin decided to leave and began to walk to his apartment nearby. Before Gardin could leave, several men he recognized from the bar drove up and blocked his way. Gardin ran to the motel lobby's glassed entry to get help.

Gardin claims he repeatedly asked Patel to let him in, but Patel denied him entrance. Gardin testified a significant period of time elapsed between when he first asked Patel for help and when he

31 Kan.App.2d 170

was attacked by the men. On the other hand, Patel testified the men attacked Gardin simultaneously with Gardin's demands to be let into the lobby. Patel testified he refused to admit Gardin, but told him the police were on the way

During the fight, Gardin was stabbed by Cassidy several times. The police arrived minutes later, and Gardin was taken to the hospital for treatment of his wounds.

Gardin filed suit against Emporia Hotels, Cassidy, and Worldwide. Following discovery, Emporia Hotels filed a motion for summary judgment, arguing that Gardin was a trespasser at the motel and, thus, Emporia Hotels owed him no duty beyond refraining from willfully or wantonly injuring him. Gardin contended there was no evidence he was a trespasser, and Emporia Hotels owed him a duty of reasonable care under the circumstances.

The district court granted Emporia Hotels' motion for summary judgment based on two findings: (1) Gardin was a mere trespasser rather than an invitee or licensee of Emporia Hotels, and (2) under the totality of the circumstances, Emporia Hotels had no reason to be aware of any possible problems with crime in the area, and Cassidy's act was not foreseeable.

The district court entered default judgment against Cassidy, who was imprisoned and did not answer Gardin's petition. Worldwide settled with Gardin and was dismissed from the lawsuit. The only remaining defendant is Emporia Hotels.

The court's standard of review for appeals of summary judgment is well-established:

"`Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]'" Mitchell v. City of Wichita, 270 Kan. 56, 59, 12

31 Kan.App.2d 171

P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).

Cases involving questions of liability under these circumstances are often fact sensitive. Because Gardin and Emporia Hotels agree upon the material facts of this case, we have de novo review of the district court's order granting summary judgment. See Veatch v. Beck, 252 Kan. 1081, 1082, 850 P.2d 923 (1993).

In his petition, Gardin alleges the Emporia Hotels breached its duty to him by negligently failing to take proper precautions to prevent the assault he suffered and by failing to come to his aid. In negligence actions, summary judgment should be granted with caution. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). Summary judgment may be appropriate, however, when the plaintiff cannot meet the basic requirements for negligence claim.

"To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact." Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, Syl. ¶ 1, 43 P.3d 799 (2002).

Based on the undisputed facts, the district court found that Emporia Hotels did not owe Gardin a duty to protect him or come to his aid. This is a question of law over which this court has unlimited review. Gragg v. Wichita State Univ., 261 Kan. 1037, 1044, 934 P.2d 121 (1997).

Generally speaking, a person has no duty to control the conduct of a third person to prevent harm to others unless there is...