Jackson v. K-Mart Corp.

• Citation: 16 Kan.App.2d 716,828 P.2d 941
• Decision Date: 27 March 1992
• Docket Number: K-MART,No. 66742,66742
• Parties: Brigitte JACKSON, Appellant, v.CORPORATION, Appellee.
• Court: Court of Appeals of Kansas

Page 941

828 P.2d 941

16 Kan.App.2d 716

Brigitte JACKSON, Appellant, v. K-MART CORPORATION, Appellee.

No. 66742.

Court of Appeals of Kansas.

March 27, 1992.

Review Granted June 4, 1992.

Syllabus by the Court

1. Rules for granting summary judgment are stated and applied.

2. The owner or occupant of business premises must exercise reasonable care to keep the premises in a reasonably safe and suitable condition, and if the owner or occupant fails to do so, he or she is liable to an invitee for injuries proximately resulting therefrom.

3. The proprietor of a store is not an insurer of its customers. Proof of a dangerous condition on the proprietor's premises usually does not render the proprietor liable; the fact that an invitee slips and falls does not raise an inference of negligence.

4. Traditionally, where a dangerous condition is not created through the active fault of the proprietor or its agents, the plaintiff must prove the proprietor had actual, constructive, or inferred knowledge or notice of the condition to establish liability. In contrast, where the customer's injury is caused by dangerous conditions negligently created or maintained by the proprietor or its agents, the proprietor is deemed to have actual notice of the dangerous condition. Thus, if the dangerous condition is traceable to the proprietor's actions, proof of notice is unnecessary.

5. Kansas courts have not specifically adopted the mode-of-operation rule in slip-and-fall cases, but they have recognized that certain modes of operation may require a higher degree of care by the proprietor. Elrod v. Walls, Inc., 205 Kan. 808, 473 P.2d 12 (1970); Little v. Butner, 186 Kan. 75, 348 P.2d 1022 (1960). The mode-of-operation rule is a natural extension of Elrod and Little, and we adopt the rule as Kansas law.

6. The mode-of-operation rule generally allows a plaintiff in a slip-and-fall case to recover without showing the proprietor's actual or constructive knowledge of a dangerous condition if the plaintiff shows the proprietor adopted a mode of operation where a patron's carelessness should be anticipated and the proprietor fails to use reasonable measures commensurate with the risk involved to discover the condition and remove it.

7. The mode-of-operation rule only applies in slip-and-fall cases where the proprietor can reasonably anticipate a situation where hazardous conditions will regularly arise.

8. Application of the mode-of-operation rule does not subject proprietors to strict liability in slip-and-fall cases. Proprietors are liable in mode-of-operation cases only if they adopted a mode of operation which made recurring dangerous conditions reasonably foreseeable and failed to exercise reasonable care under the circumstances.

Henry O. Boaten, of Law Offices of Henry O. Boaten, Topeka, for appellant.

Barry E. Warren, and Bradley S. Russell, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, for appellee.

Before DAVIS, P.J., PIERRON, J., and R. DAVID LAMAR, District Judge, Assigned.

DAVIS, Judge:

Brigitte Jackson appeals from an order granting K-Mart Corporation summary judgment in this slip-and-fall tort action. She contends that the court erred in holding she was required to prove K-Mart had actual or constructive notice of a dangerous condition on the premises. We reverse and remand for trial.

Brigitte Jackson entered the K-Mart department store located in Manhattan, Kansas, as a business invitee for the purpose of shopping for children's clothing. While walking down an aisle in the children's clothing department, she slipped and fell near a round clothing rack. In the middle of the tile floor near the rack, there was an accumulation of a green liquid substance that was apparently avocado juice.

Jackson did not see the spilled juice, did not know how it got there, and did not know how long it had been there. After her fall, an unidentified K-Mart employee found a partially full can of avocado juice near the spill and told Jackson that she apparently had slipped on the substance. Later, Jackson overheard an unidentified K-Mart customer say a woman had passed through the children's clothing department accompanied by a small child who was carrying a can of avocado juice. The customer surmised the child disposed of the can by placing it on the floor underneath the clothing rack.

K-Mart operates an in-store cafeteria and allows cafeteria patrons to remove food and drink from the cafeteria area and consume it on the shopping floor. Jackson testified that K-Mart sells small cans of avocado juice in the cafeteria.

On cross-motions for summary judgment, the parties agreed and the court found that no material issues of disputed fact precluded summary judgment on the issue of liability. The trial court found that, based on the undisputed facts, the spilled liquid on the defendant's floor was not clearly traceable to K-Mart's actions; therefore, plaintiff was required to prove actual, constructive, or inferred knowledge of the spill by K-Mart. Because the undisputed facts did not establish notice, the court held K-Mart was not liable.

Jackson argues that because K-Mart allowed food and drink items from its in-store cafeteria to be carried into other sections of the store, she was not required to prove K-Mart had actual or constructive notice of the spilled juice. The condition existed, she argues, because of K-Mart's mode of operation; the dangerous condition existed because the storekeeper allowed in-store cafeteria patrons to carry food and drink into the shopping floor area. She argues that the condition is therefore traceable to K-Mart and requires no proof of actual or constructive notice.

The often-stated rules regarding summary judgment and appellate review of summary judgment are:

"Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. [Citations omitted.] When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment." Patterson v. Brouhard, 246 Kan. 700, 702, 792 P.2d 983 (1990).

"To oppose a motion for summary judgment, a party must actively come forward with something of evidentiary value to establish a material dispute of fact. It is not for the court to seek out, but for counsel to designate, that which supports a party's position. A party whose lack of diligence frustrates the trial court's ability to determine if factual issues are controverted falls squarely within the sanctions of Supreme Court Rule 141 [1991 Kan.Ct.R.Annot. 117]." Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. p 1, 739 P.2d 444 (1987).

Negligence is ordinarily a jury question, not a question for judicial resolution on a motion for summary judgment. Mastin v. Kansas Power & Light Co., 10 Kan.App.2d 620, 622, 706 P.2d 476 (1985). Where reasonable persons could reach differing conclusions based on the same evidence, negligence should not be decided as a matter of law. Chambers v. Skaggs Companies, Inc., 11 Kan.App.2d 684, 689, 732 P.2d 801 (1987).

The facts are not in dispute. The question before us is whether Jackson is required to prove that K-Mart had actual, constructive, or inferred notice of the dangerous condition on the premises. Our review of the trial court's resolution of this question is unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).

A business proprietor owes its customers a duty to keep the floors of the business in a reasonably safe condition.

"The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee's safety.... The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonable [sic ] safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence." Graham v. Loper Electric Co., 192 Kan. 558, 561-62, 389 P.2d 750 (1964).

This duty is expressed as follows:

"[T]he obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The [proprietor] must not only use care not to injure the visitor by negligent activities, and warn him of hidden dangers known to the [proprietor], but he must also act reasonably to inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use of the property." Prosser and Keeton, Law of Torts, § 61, 425-26 (5th ed.1984).

On the other hand, the proprietor of a store is not an insurer of its customers. Fisher v. Sears, Roebuck & Co., 207 Kan. 493, 497, 485 P.2d 1309 (1971); Chambers, 11 Kan.App.2d at 687, 732 P.2d 801. Thus,

"[m]ere proof of a dangerous condition on the property owner's premises does not render the owner liable to the invitee for any accident that may occur therein; the mere fact that an invitee slips and falls on the floor of the inviter's property does not raise an inference of negligence." Chambers, 11 Kan.App.2d at 687, 732 P.2d 801.

See Carter v. Food Center, Inc., 207 Kan. 332, 335, 485 P.2d 306 (1971); Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 33, 402 P.2d 767 (1965).

Kansas courts have stated that the grounds for a proprietor's liability in a slip-and-fall case is the proprietor's superior knowledge over that of its customers to know of any dangerous condition and its failure to warn...