Hall v. Quivira Square Development Co., Inc.

• Decision Date: 02 February 1984
• Docket Number: No. 54818,54818
• Citation: 9 Kan.App.2d 243,675 P.2d 931
• Parties: Jean C. HALL, Appellant, v. QUIVIRA SQUARE DEVELOPMENT CO., INC., and Revco Drug Centers of Kansas, Inc., Appellees.
• Court: Kansas Court of Appeals

Page 931

675 P.2d 931

9 Kan.App.2d 243

Jean C. HALL, Appellant, v. QUIVIRA SQUARE DEVELOPMENT CO., INC., and Revco Drug Centers

of Kansas, Inc., Appellees.

No. 54818.

Court of Appeals of Kansas.

Feb. 2, 1984.

Review Denied March 2, 1984.

Syllabus by the Court

1. The key to ascertaining liability to a personal injury victim in a shopping center with multiple tenants for failure to maintain or failure to warn of a defect in a common area is who occupies the common area with the intent to control it.

2. On the date service was made on the landowner in this case, a special process server appointed by the district court of Johnson County, Kansas, was not authorized by the laws of either Kansas or Missouri to make service in Missouri.

3. In a personal injury case wherein the injury is attributable to a landowner's failure to maintain an area it has retained for the common use of its lessees and their customers, and for which it has agreed to be solely responsible to maintain and repair, it is held that the trial judge did not err (1) in granting summary judgment in favor of a lessee and (2) in quashing service of process on the landowner.

F. Lawrence McAulay, Jr., of McAulay & Owens, Lenexa, for appellant.

Jerome V. Bales and Jeffrey L. Lauersdorf, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, for appellee Quivira Square Development Co., Inc.

Rolland J. Exon and Thomas E. Ruzicka, of Gardner, Davis, Kreamer, Norton, Hubbard & Ruzicka, Olathe, for appellee Revco Drug Centers of Kansas, Inc.

Before ABBOTT, P.J., PARKS, J., and HARRY G. MILLER, District Judge Retired, Assigned.

ABBOTT, Presiding Judge:

In this personal injury case, the plaintiff, Jean C. Hall, appeals from the summary judgment granted to Revco Drug Centers of Kansas, Inc., (Revco) and from the judgment quashing service of process on Quivira Square Development Co., Inc. (Quivira Square).

Revco is a tenant of Quivira Square. Plaintiff had been shopping at the Revco store located in the shopping center owned by Quivira Square. She was going to her car when she fell in the parking lot at a point approximately 40 feet from the entrance to Revco's. Her fall was caused by an uneven surface where the driveway in the parking lot converged with the general parking area of the shopping center. The driveway and general parking area are both used by the customers of some seventeen stores located in the shopping center. Under the terms of Revco's lease with Quivira Square, all sidewalks, driveways, service areas and all parking spaces are designated as common areas for the use of all the shopping center lessees. The lease provides that Quivira Square has sole responsibility to make all repairs and perform all maintenance in those areas.

The trial court granted summary judgment to Revco, having concluded that Quivira Square had retained control over the common areas (parking area, driveways, sidewalks) and that Revco had no duty to maintain the parking lot and no duty to warn customers of any probable dangerous condition.

The parties recognize that the general rule in Kansas is that the owner or occupier of real property owes a duty to business invitees to maintain the premises in a reasonably safe condition. When real property is leased to a tenant, the duty to maintain is on the lessee. It is equally well settled that a lessor is liable for failure to maintain the leased area retained for the common use of the lessor's tenants when the tenants and their customers are merely entitled to use the common area. Borders v. Roseberry, 216 Kan. 486, 488-91, 532 P.2d 1366 (1975).

Plaintiff's position is that Revco and Quivira Square have concurrent liability.

In a personal injury case occurring in a shopping center parking lot, the key to ascertaining the liability of a landlord and tenant for failure to maintain or failure to warn of a defect in a common area is who occupies the common area with the intent to control it. Moore v. Muntzel 231 Kan. 46, 49, 642 P.2d 957 (1982); Farran v. Peterson, Administrator, 185 Kan. 154, 159, 342 P.2d 180 (1959); Annot., 48 A.L.R.3d 1163; Restatement (Second) of Torts §§ 328E, 342 (1965). Here, the shopping center landowner, Quivira Square, by its lease retained control and had the duty to maintain the common area, which included the driveway and parking area where plaintiff fell, and which was under the exclusive possession and control of Quivira Square. We are satisfied the trial court did not err in granting summary judgment to Revco.

Plaintiff's next complaint concerns the trial court's judgment quashing the service made on Quivira Square in Missouri because it was not made by an officer of that state as was required by K.S.A. 60-308(a)(2) (Weeks) when service was made.

Plaintiff filed her cause of action on the last day allowed by the two-year statute of limitations. No effort was made to obtain service on Quivira Square until 89 days later when a special process server was appointed for the purpose of making service in Missouri. Quivira Square was served in Missouri that same day. The trial court sustained Quivira Square's motion to quash service of process and dismissed plaintiff's cause of action because the special process server was not an officer of the State of Missouri as required by K.S.A. 60-308(a)(2) (Weeks). Plaintiff discovered that the legislature had amended K.S.A. 60-303 so that effective July 1, 1982 (the date the motion to quash was heard in this case), a specially appointed process server could make service in or out of the state. Plaintiff subsequently filed a motion to amend the judgment and requested relief on the basis that the amended statute was newly discovered evidence. The trial court denied the motion and this appeal followed.

Plaintiff argues that at the time service was obtained, on the next to last day possible if service was to relate back to a time within the two-year statute of limitations, a special process server was authorized to make service out of state. But plaintiff makes no argument in her brief that the amendment to K.S.A. 60-303 (which is clearly procedural) can be applied to this case, thus we do not consider that question.

Statutes that have application to the issue before us are: K.S.A. 60-204, which states:

"The methods of serving process as set forth in article 3 of this chapter shall constitute sufficient service of process in all civil actions and special proceedings, but they shall be alternative to, and not in restriction of different methods specifically provided by law. In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her person, status or property were subject to being affected." (Emphasis supplied.)

K.S.A. 60-308 (Weeks), which provides for personal service outside Kansas, states in pertinent part:

"(a )(2) The service...