Gragg v. Wichita State University, 76618

• Decision Date: 14 March 1997
• Docket Number: No. 76618,76618
• Citation: 261 Kan. 1037,934 P.2d 121
• Parties: , 117 Ed. Law Rep. 325 Barbara GRAGG, et al., Appellants, v. WICHITA STATE UNIVERSITY, et al., Appellees.
• Court: Kansas Supreme Court

Page 121

934 P.2d 121

261 Kan. 1037, 117 Ed. Law Rep. 325

Barbara GRAGG, et al., Appellants, v. WICHITA STATE UNIVERSITY, et al., Appellees.

No. 76618.

Supreme Court of Kansas.

March 14, 1997.

Syllabus by the Court

1. In the absence of a special relationship, there is no duty on a person to control the conduct of a third person to prevent harm to others.

2. A possessor of land who holds it open to the public is under a duty to members of the public who enter in response to his or her invitation to take reasonable action to protect them against unreasonable risk of physical harm. The duty in each case is only one to exercise reasonable care under the circumstances.

3. To hold a party liable for failure to keep premises in a reasonably safe condition, the party must be the owner, occupier, or possessor of the premises. A possessor of land is one who is in occupation of the land with the intent to control it.

4. In a premises liability case, in order to be liable, the party charged must have control over the premises in question. Without control, the responsibility for the dangerous or hazardous condition cannot exist. A party may not be held responsible for a condition which he or she did not cause and which he or she has no ability to remedy.

5. No liability exists simply because one is a sponsor of a public event, absent some proof the sponsor had direct control over hazardous conditions. Under the facts of the present case, no sponsor had the requisite control over the premises to the extent it could be considered a possessor of land for purposes of imposing a duty.

6. The owner of a business is not the insurer of the safety of its patrons or customers. The owner ordinarily has no liability for injuries inflicted by the criminal acts of third parties, as the owner has no duty to provide security. Such a duty may arise, however, where circumstances exist from which the owner could reasonably foresee a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.

7. The duty to provide security is determined under the reasonable person standard. Thus, the duty to provide security and the level of such security must be reasonable. If, because of the totality of the circumstances, the owner has a duty to take security precautions by virtue of the foreseeability of criminal conduct, such security measures must also be reasonable under the totality of the circumstances.

8. An injury is foreseeable so as to give rise to a duty of care where a defendant knows or reasonably should know that an action or the failure to act will likely result in harm.

9. Under the present facts, Wichita State University owed no duty to protect or warn the decedent, as the criminal attack by a third person was not foreseeable and the security provided was reasonable under the totality of the circumstances.

10. Under the present facts, the actions of Wichita State University (WSU) and its police department in providing security for a public event on the campus clearly invoke the police protection exception of K.S.A.1996 Supp. 75-6104(n). The determination by WSU as to how to provide police protection was immune from liability under the Kansas Tort Claims Act. A state entity is not liable because of the methods it adopts for police protection. Both the duty to protect and the duty to warn, on the facts alleged, fall within the police protection exception.

11. Granting summary judgment prior to the completion of discovery is a matter within the trial court's discretion and will be upheld, unless clearly erroneous.

Charles T. Engel, of Cosgrove, Webb & Oman, Topeka, argued the cause, and John T. Houston, of the same firm, was with him on the briefs, for appellants.

Jeff C. Spahn, Jr., argued the cause, and Michael G. Jones, of Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., Wichita, were on the brief, for appellees Wichita State University and Wichita State University Intercollegiate Athletic Association, Inc.

John C. Nettels, Jr., of Morrison & Hecker, L.L.P., Wichita, argued the cause, for the remaining appellees, and Dwight D. Dumler, of the same firm, was with him on the brief, for appellee Cessna Aircraft Company.

M. Duane Coyle, of Wallace, Saunders, Austin, Brown, & Enochs, Chartered, Wichita, was on the briefs, for appellee Blockbuster Entertainment Corp.

William Tinker, Jr., Sharon A. Werner, and Alisa M. Arst, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, were on the brief, for appellee TB of America, Inc., Taco Bell Corp., and New West Radio, Inc., formerly d/b/a KNSS Radio and/or KRZZ Radio.

J. Michael Kennalley, of Hershberger, Patterson, Jones & Roth, L.C., Wichita, was on the brief, for appellee Major Video of Kansas, Inc.

William P. Tretbar, of Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, was on the brief, for appellee Chronicle Publishing Company d/b/a KAKE-TV.

Bryan W. Smith, of Fisher, Cavanaugh & Smith, P.A., Topeka, was on the brief, for amicus curiae, Kansas Trial Lawyers Association.

LARSON, Justice:

This is a wrongful death and survival action brought by the heirs of Barbara Gragg, who was shot and killed by Anthony Scott at the Celebrate '93 fireworks display held on the campus of Wichita State University (WSU). The defendants are WSU, its athletic corporation, and the corporate sponsors of the event. The Gragg children claimed the defendants failed to provide adequate security for the event, failed to install adequate lighting on the campus, and failed to warn of the potential for crime on or near the campus.

The trial court granted the defendants summary judgment on the grounds they owed no legal duty to protect Gragg from or warn her of the criminal acts of a third party and the Kansas Tort Claims Act (KCTA) provides immunity to all the defendants from the plaintiffs' claims.

Statement of facts.

The trial court essentially accepted, while recognizing that some statements were conclusory, the Graggs' statement of uncontroverted facts for the purpose of ruling on the summary judgment motion. The defendants' statements of the uncontroverted facts, except those few disputed by the Graggs, were also accepted. These facts were essentially the following:

An Independence Day program of "Celebrate" has been held annually in Cessna Stadium on the WSU campus from 1976 through 1993, with the exception of 1990, when it was held elsewhere due to the condition of the Cessna Stadium bleachers. Celebrate was considered a community event to benefit the people of Wichita and its goal was to create an atmosphere of celebration on the Fourth of July.

The cost of the Celebrate programs has been underwritten by local corporate sponsors, which have varied from year to year, with only KAKE-TV having been a sponsor since inception. The sponsors of Celebrate '93 were Chronicle Broadcasting Co. d/b/a KAKE-TV, New West Radio, Inc. d/b/a KRZZ/KNSS Radio, T B of America, Inc., Taco Bell Corp., Blockbuster Entertainment Corp., Major Video of Kansas, Inc., and Cessna Aircraft Co. The sponsors helped select "hometown heroes" for the event; provided television and radio coverage or made financial payments; and helped the committee design Celebrate '93 items such as T-shirts, signs, and letterheads. The retail business sponsors sold admittance buttons.

Celebrate '93 was primarily produced by a coordinating committee which met numerous times prior to the event. Amy Schafer, the WSU Director of Community Relations and Special Events, served as executive producer of Celebrate '93. She prepared the coordinating committee and public safety committee agendas and minutes, put together a security manual, and had general supervision and control over the event. Each sponsor assigned one or more individuals to the Celebrate '93 coordinating committee. None of the sponsors or the coordinating committee members were paid for their services, with the exception of Schafer, who received $400 from Celebrate '93.

The coordinating committee's duties were to plan, promote, and produce Celebrate '93 and to approve its budget. Security was discussed at most meetings, and a public safety subcommittee met to discuss a wide range of security issues on June 22, 1993. Captain John Davis, a salaried employee of the WSU police department (WSUPD), has been involved in the security of all prior Celebrate events. Captain Davis prepared the security plan for Celebrate '93, developed the security arrangements, and made a report at each coordinating committee meeting. Captain Davis' plan had remained virtually unchanged for the past 10 Celebrate events.

The coordinating committee received and reviewed the Celebrate '93 security plan. No suggestions relating thereto were made, although the use of mounted officers at the event had been a suggestion from members of a prior coordinating committee. While members of the committee could voice opinions regarding any subject, the sponsors believed they had no authority to tell the WSUPD how to handle security for Celebrate '93.

WSU's president granted authority to use Cessna Stadium and for skydivers to land on the campus. Celebrate '93 did not lease the stadium or any of the surrounding university property. Numerous employees of WSU and its affiliate, the Wichita State University Intercollegiate Athletic Association, Inc. (WSUIAAI), participated in planning and producing the event, but no cash funds were provided by WSU. Various WSU departments billed Celebrate '93 for supplies or services. Funds for Celebrate '93 were held in a special account maintained by the WSU Board of Trustees. All bills for Celebrate '93 were forwarded to the WSU public relations office and were paid from this account after Schafer submitted them to the WSU Board of Trustees. Celebrate '93 security officers were paid from this account. Captain Davis was paid for 36 hours of work.

The Celebrate '93 account had a beginning balance of $9,835.83. The planned budget...