Jones v. Hansen, 68926

• Court: United States State Supreme Court of Kansas
• Writing for the Court: DAVIS; In Britt; Holmes; McFARLAND; SIX; LOCKETT
• Citation: 254 Kan. 499,867 P.2d 303
• Parties: Nadine N. JONES, Appellant, v. Merida HANSEN and Carl Hansen, Appellees.
• Docket Number: No. 68926,68926
• Decision Date: 21 January 1994

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867 P.2d 303 254 Kan. 499 Nadine N. JONES, Appellant,
v.
Merida HANSEN and Carl Hansen, Appellees. No. 68926. Supreme Court of Kansas. Jan. 21, 1994.

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Syllabus by the Court

1. In Kansas the duty owed by an occupier of land to licensees shall no longer be dependent upon the status of the entrant on the land. The common-law classification and duty arising from the classification of licensees shall no longer be applied.

2. The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances.

3. Included in the factors to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all the circumstances are foreseeability of harm to the plaintiff entrant, the magnitude of the risk of injury to others in maintaining such a condition on the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.

4. The effect of the common-law classification of a tort plaintiff as a trespasser remains unchanged. A possessor of the premises upon which a trespasser intrudes owes the trespasser a duty to refrain from wilfully, wantonly, or recklessly injuring the trespasser.

5. Agnew v. Dillon, Inc., 16 Kan.App.2d 298, 822 P.2d 1049 (1991), and cases cited therein, holding that a business proprietor, absent unusual circumstances, does not breach the duty of reasonable care by not removing snow or ice from outdoor surfaces during a storm and a reasonable time thereafter, is supported by sound public policy and is applicable in determining the duty owed to both invitees and licensees.

6. The new rule set out in this opinion adopting a standard of reasonable [254 Kan. 500] care under all the circumstances for licensees in premises liability cases is to be applied prospectively.

Robert C. Littrell, Manhattan, argued the cause and was on the briefs, for appellant.

Steve R. Fabert, Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and J. Steven Pigg, of the same firm, was with him on the brief, for appellees.

DAVIS, Justice:

This is a premises liability action. Plaintiff, while a social guest in the home of the defendants, fell down a flight of stairs, severely injuring herself. She appeals from a summary judgment entered in favor of the defendants. Summary judgment was based upon the undisputed facts and the court's conclusion that defendants did not breach the duty to refrain from wilfully, wantonly, or recklessly injuring plaintiff.

The question presented is whether this court should change Kansas law regarding the duty owed by an occupier of land to a social guest licensee by adopting a standard of reasonable care under all the circumstances. Under present Kansas law, the duty owed to an entrant upon property is dependent upon the status of the entrant. A majority of this court believes that a partial change in our premises liability law is warranted as more reflective of modern social mores and as a more reasonable method of fault determination in our society.

Before addressing plaintiff's question, we must deal with defendants' contention that the issue of change in Kansas law was not properly preserved because it was not presented to the trial court. There is no dispute that the issue was raised before the

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trial court during oral argument, but the parties disagree about whether the question was sufficiently raised so as to preserve it for appeal. See, e.g., Schmeck v. City of Shawnee, 232 Kan. 11, 35, 651 P.2d 585 (1982). In Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 822 P.2d 617 (1991), we declined to consider an appellant's claim that res ipsa loquitur supported her negligence claim when she raised it only at oral argument on appellee's motion to dismiss. Res ipsa loquitur was not included as a theory [254 Kan. 501] in the pretrial order and no instructions were requested in Enlow. 249 Kan. at 737-38, 822 P.2d 617. Similarly, in this case the plaintiff raised her claim only upon oral argument to the trial court. She did not allege her position in her petition, nor did she argue it in her written reply to defendants' motion for summary judgment.

However, this case differs from Enlow in that the plaintiff in this case seeks a determination that present Kansas law should be changed. This is clear from the argument plaintiff presented in opposition to defendants' motion for summary judgment:

"MR. LITTRELL [Plaintiff's counsel]: There are a number of policy issues that are issues that we cannot address in the District Court level. But in times past the doctrines of contributory negligence have been overturned by the court, the guest statutes have been repealed by the legislature. We think that we've got an equally unfair situation that exists here in premises liability laws as they exist in the State of Kansas and that it's time that the court--higher court needs to consider changing and adopting the Restatement of Torts, which is a much more realistic view of the way the world works and especially insurance law, and what one guards against and who is able to pay the best....

....

"MR. PIGG [Defendant's counsel]: ... Plaintiff also argues that the law--premises liability law of Kansas should be changed. That's been argued several times in the not too distant past and has always been rejected. There's always been some dissent. Justice Prager [is] gone, he was generally the strongest dissent proponent of eliminating traditional premises liability laws, and the probability that that law will continue as it presently is is strong....

....

"THE COURT: Well, even if there was a home tour, there was no activity that involved the defendant Mrs. Hansen. The plaintiff was the one that was involved in the home tour and her injury was not caused by an activity brought about by defendant Mrs. Hansen. Mrs. Jones' testimony on page 20 of her deposition says 'So Mrs. Hansen said there were paintings in the other room? Yes. What did you do then? I said "May I look at them?" and she said yes.' That doesn't sound like an invitation to me, but rather a response to a request to take this home tour.... It may be ordinary negligence, it may not be. It's certainly unfortunate, but the discovery record in this case in no way suggests total indifference to the consequences and reckless disregard for the rights of others or a realization of the imminence of danger. You'll have an opportunity to argue the policy decisions to the higher court, Mr. Littrell."

Typically, a party may not raise an issue on appeal that was not presented to the trial court. We have, however, recognized [254 Kan. 502] an exception when the issue raised is a question of law that may be decided on established facts. See Board of Sedgwick County Comm'rs v. Kiser Living Trust, 250 Kan. 84, Syl. p 8, 825 P.2d 130 (1992). The issue argued before the trial court in this case fits within that exception because it is a question of law that may be decided on established facts. Moreover, the plaintiff did argue this issue before the trial court, but that court was duty bound to follow existing Kansas law. The defendants were given a full and fair opportunity to brief and argue the issue before this court. We conclude that the issue was considered by the trial court sufficiently to preserve the issue for appeal.

The facts in this case are not in dispute. Plaintiff was invited to play bridge in the defendants' home. When plaintiff had the dummy hand, she began looking at defendants'

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art work. Mrs. Hansen told her that there were more paintings in another room. That room was adjacent to the one in which bridge was being played, and it was dimly lit. Plaintiff testified she had to be within a foot of the paintings to see them. She did not ask the defendants where the light switch was located. There were two table lamps, one floor lamp, and eight ceiling floodlights available in the room. Only the floor lamp was lit. It was the first time plaintiff had been in the defendants' home. As plaintiff walked sideways around the room looking at the paintings, she fell down a flight of stairs and was severely injured.

The stairwell was blocked off on two sides with a 33-inch-high bookcase, which defendants placed there to prevent people from just walking into the stairwell. There were three paintings hung on the wall above the stairwell. The paintings had hung at that location since 1977, and no one other than the plaintiff has been injured on the stairway.

KANSAS LAW

Under Kansas law, the common-law classifications of trespassers, licensees, and invitees are used to determine the duty owed by an occupier of land to the entrants on the land. The duty owed is dependent upon the status of the entrant. This classification system has deep roots in Anglo-American jurisprudence as well as in Kansas law. In Gerchberg v. Loney, 223 Kan. 446, [254 Kan. 503] 448-49, 576 P.2d 593 (1978), this court summarized the duty of care owed to the classes of injured parties coming upon property:

"Under the present law of Kansas a trespasser is one who enters on the premises of another without any right, lawful authority, or an express or implied invitation or license. The possessor of premises on which a trespasser intrudes owes a trespasser the duty to refrain from wilfully, wantonly, or recklessly injuring him. (Frazee v. St. Louis-San Francisco Rly. Co., [219 Kan. 661, 549 P.2d 561 (1976) ]. See also PIK 2d [Civil] 12.20 and 12.21.)

"A licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, or by operation of law, so that he [or she] is not a trespasser thereon. The possessor of premises on which a licensee intrudes owes a licensee the duty to refrain from wilfully or wantonly injuring...