Harter v. Kuntz
| Citation | 485 P.2d 190,207 Kan. 338 |
| Decision Date | 15 May 1971 |
| Docket Number | No. 45983,45983 |
| Parties | Lizzie Bohan HARTER, Appellant, v. Jack J. KUNTZ and Mary E. Kuntz, Appellees. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. A person's status when entering upon the property of another by invitation is determined by the purpose for which the person comes upon the property.
2. Where the evidence in a deposition of the plaintiff is sketchy as to the nature of a 'Stanley Party,' and the purpose of the plaintiff in attending the party is not probed, the status of the plaintiff upon the premises where the 'Stanley Party' is conducted cannot be determined to be that of a business invitee on a motion for summary judgment.
3. In a negligence action brought by the plaintiff who slipped and fell on the steps of the defendants' premises while attending a 'Stanley Party,' a motion for summary judgment cannot be sustained where there are genuine issues as to material facts undertermined.
4. The deposition testimony of the plaintiff in a negligence action, which does not negate the allegations of her petition, or resolve issues framed by the pretrial order which would bar her recovery, need not be answered by affidavit where the defendants move for summary judgment because genuine issues of fact remain undetermined.
Wilmer E. Goering, of Clarkson, Goering & Silver, Wichita, argued the cause, and Earl M. Clarkson, Jr. and Michael J. Silver, Wichita, of the same firm, were with him on the brief for appellant.
H. E. Jones, of Hershberger, Patterson, Jones & Thompson, Wichita, argued the cause, and Greer Gsell, Wichita, of the same firm, was with him on the brief for the appellees.
This is a negligence action brought by the plaintiff to recover for injuries sustained as a result of a fall from an inadequately lighted step while on the defendants' premises. The trial court sustained a motion for summary judgment and appeal has been duly perfected.
The controlling question on appeal is whether the state of the record is sufficient to warrant the disposition of the case by a motion for summary judgment.
At the time the motion for summary judgment was interposed the pleadings were on file, pretrial had been conducted and the deposition of the plaintiff had been taken.
At all times material hereto the defendants owned and, together with four of their children, occupied the premises next door to the plaintiff.
During the early part of the month of December, 1966, a party was planned for Patsy Kuntz, the eldest daughter of the defendants, to be held at the Kuntz home on the evening of December 14, 1966. The plaintiff alleged in her petition that she had previously been invited by the defendant, Mary E. Kuntz, to attend a 'Stanley Party' on that evening, when she was caused to step and fall off the porch stairs onto an open and unprotected area and across a framework of metal chair backs stuck into the ground alongside and in front of the residence, by reason of the negligent conduct of the defendants in failing properly to protect, light and guard the same and in failing to warn the plaintiff of the dangers and hazards thereof. As a result the plaintiff sustained personal injuries.
When the plaintiff was asked in her deposition to explain what a 'Stanley Party' was like, she said:
'
In her deposition the plaintiff testified that a week or so before the time for the party, the defendants' daughters-the two younger girls, Mary, age 9, and Kathleen, age 13-expressly invited the plaintiff to attend the party. Again on the day of the party the two younger girls came to Mrs. Harter's home and insisted on her coming to the party.
Mrs. Harter went to the defendants' home at approximately 7 o'clock. It was after dark. When she arrived at the party she was served refreshments, visited a bit, was shown the merchandise, made some purchases, and was the first to leave the party about 9 o'clock.
When the plaintiff left the party Kathleen accompanied her through the front door which opened onto a covered porch across the front of the house. The steps leading off the porch were about four in number, there was no hand rail, and at the foot of the steps was a concrete platform. As the plaintiff stepped off the platform she fell. The large porch light, which ordinarily illuminated the area, had been removed and replaced with a connection to run a string of small colored Christmas lights across the front of the porch. A large evergreen tree cast a shadow across the area where the plaintiff fell.
The motion alleged the deposition of the plaintiff and the admissions of the parties left no question concerning any material fact relative to the plaintiff's relationship to the defendants while on their premises in dispute, in that the plaintiff's visit was purely social.
At the pretrial conference the parties announced the factual issues in the case to be the negligence of the defendants, if any, and the contributory negligence of the plaintiff, if any. The plaintiff maintained that the defendants failed to keep their property in a reasonably safe condition in that they did not maintain sufficient lighting. The defendants maintained that the plaintiff herself refused aid and assistance and failed to keep a proper lookout for her own safety.
A further factual issue was the status of the plaintiff upon the defendants' property-whether she was 'a social guest or a business invitee or licensee.'
The appellant contends the trial court erred in finding the plaintiff's relationship to the defendants while upon the defendants' premises to be purely social-thereby making her legal status that of a licensee. The appellant argues she was a business invitee as to the appellees, relying upon Graham v. Loper Electric Co., 192 Kan. 558, 389 P.2d 750; and Lemon v. Busey, 204 Kan. 119, 461 P.2d 145.
A person's status when entering upon the property of another by invitation is determined by the purpose for which the person comes upon the property. (Lemon v. Busey, supra.)
To support the appellant's position that she was a business invitee, counsel for the appellant in his brief argues concerning the 'Stanley Party:'
'Such a merchandising plan is not new. However, it has recently gained considerable popularity and continues to do so. It has become big business. Large organizations are using this method or merchandising solely for the selling of household goods, cookware, toiletries, cosmetics clothing and many other articles. Many persons are engaged on a full time basis to assist hostesses to arrange 'parties' where their wares may be displayed and hopefully sold to the persons invited to the party.
'This, appellant urges, is business, big business, and not social in purpose. The fact that it is held in one's home, usually in the evening hours and in a relaxed or informal atmosphere does not detract from the real and true reason for the 'party.'
'The motive of the company representative in assisting the host in arranging the party certainly would bear the marks of having a business purpose.
'The prime purpose of the host in having the party was to 'obtain bonuses,' again more of a business purpose, and, appellant submits the purpose in her being there was to view the merchandise for sale for the purpose of enticing her to make a purchase, which she did.'
The evidence ultimately presented at the trial of the case may confirm the appellant's position as to the business nature of a 'Stanley Party,' and the purpose for which the appellant attended, but the record at this point in the proceeding is not sufficient to establish these facts. Certainly the court cannot take...
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