Knowles v. Klase

• Decision Date: 08 November 1969
• Docket Number: N-E,O-M,No. 45443,45443
• Citation: 460 P.2d 444,204 Kan. 156
• Parties: Cora KNOWLES, Appellant, v. Ralph A. KLASE and Doris J. Klase, d/b/a Quick-asy Wash-at, Appellees.
• Court: Kansas Supreme Court

Page 444

460 P.2d 444

204 Kan. 156

Cora KNOWLES, Appellant, v. Ralph A. KLASE and Doris J. Klase, d/b/a Quick-N-Easy Wash-O-Mat, Appellees.

No. 45443.

Supreme Court of Kansas.

Nov. 8, 1969.

Rehearing Denied Dec. 16, 1969.

Syllabus by the Court

In an appeal by plaintiff from a summary judgment entered in favor of defendants in a 'slip and fall' negligence action the record is examined and

(1) The rule by which a motion for summary judgment should be determined is iterated and applied, following Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P.2d 1019;

(2) The duty of a proprietor to a business invitee is set forth, following Smith v. Mr. D's, Inc., 197 Kan. 83, 415 P.2d 251, Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 427 P.2d 591; and

(3) It is held a summary judgment was improperly entered for the defendants, and the case is remanded for trial.

Gerald L. Michaud, Wichita, argued the cause and Kenneth L. Ingham and Orval L, Fisher, Wichita, were with him on the brief for appellant.

John E. Rees, Wichita, argued the cause and Wayne Coulson, Paul R. Kitch, Dale M. Stucky, Donald R. Newkirk, Gerrit H. Wormhoudt, Philip Kassebaum, Robert T. Cornwell, Willard B. Thompson, David W. Buxton, John T. Conlee, John Prather, Richard I. Stephenson, John E. Matson, Homer V. Gooing, Hugo T. Wedell and Douglas D. Johnson, Wichita, were with him on the brief for appellees.

FROMME, Justice.

This is an appeal by plaintiff from a summary judgment entered in favor of defendants in a 'slip and fall' negligence action. The plaintiff, a business invitee, was seriously injured shortly after entering defendants' laundromat. The plaintiff accused defendants of failing to keep the floor in a reasonably safe condition. Summary judgment was entered after depositions had been taken from all prospective witnesses disclosed at pre-trial conference.

The question raised in this appeal is whether any genuine issue of fact, one having a controlling legal effect upon the outcome of plaintiff's claim, remained in dispute when the summary judgment was entered.

In Smith v. Mr. D's, Inc., 197 Kan. 83, 85, 415 P.2d 251 and in Bingham v. Hillcrest Bowl, Inc., 199 Kan. 40, 43, 427 P.2d 591, we set forth the duty of a proprietor to a business invitee. That duty will be iterated in the following paragraph.

A proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by business invitees in a reasonably safe condition. If an unsafe condition is created by the proprietor or those for whom he is responsible, or if it is traceable to their actions, proof of notice of the condition is unnecessary. When a dangerous condition is neither created by the proprietor or those for whom he is responsible, nor traceable to their actions, proof of negligence with respect to a floor condition requires some showing they had actual or constructive notice of the dangerous condition. A proprietor may be charged with constructive notice of the condition if the condition existed for such length of time that the proprietor, his agents or employees should have known of it in the exercise of ordinary care.

The defendnats contend in this case actual or constructive notice is necessary and the absence of notice of the condition, actual or constructive, is fatal to plaintiff's claim. They argue the facts upon which notice, or lack of it, must depend are not in dispute. Therefore summary judgment was proper.

The plaintiff is of a contrary opinion.

The plaintiff alleged in her petition the floor of the laundromat was 'wet, slippery, dangerous and unsafe and the defendants knew, or by the exercise of ordinary care, should have known said condition of the floor existed'. The plaintiff contended at pre-trial conference there were leaves, water or other substances on the floor of the laundromat causing the floor to be slippery and the defendants failed to correct said condition.

The defendants contend in their brief a summary judgment in their favor was proper because there was 'no substantial, competent evidence to support a verdict and judgment for plaintiff'. This is the test applied on a motion for directed verdict at the close of evidence. It is not a proper test to determine a motion for summary judgment in advance of trial.

The rule requiring substantial competent evidence to support a verdict and judgment is set forth and applied in Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P.2d 380, Smith v. Mr. D's, Inc., supra, and Bingham v. Hillcrest Bowl, Inc., supra. Although defendants cite the above cases in support of their present position, those cases were not determined on motions for snmmary judgment. In each of those cases this court was concerned with the sufficiency of the evidence to support a verdict and judgment, and evidence had been introduced during trial.

The present case rests on a summary judgment entered before trial. The rule by which a motion for summary judgment should be determined may be found in Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 790, 420 P.2d 1019. A summary judgment should not be entered if there...