There was a severe snow and ice storm in the Dodge City area starting on January 13, 2017, and ending on January 16, 2017. On January 15, 2017, sometime between 3 a.m. and 5 a.m., Lacost arrived at Boot Hill in Dodge City. She parked her car and walked through the parking lot. Near the entrance, Lacost slipped and fell, injuring her leg and other parts of her body.
On January 14, 2019, Lacost filed a negligence action against Boot Hill and the Contractor. Boot Hill and the Contractor denied the negligence claim and asserted the affirmative defenses of assumption of risk, comparative fault, and the winter storm doctrine. The parties engaged in discovery from May through August 2019.
On September 24, 2019, Boot Hill moved for summary judgment based on the winter storm doctrine. Contractor joined the motion. Boot Hill's motion included a statement of uncontroverted facts in compliance with Kansas Supreme Court Rule 141(a) (2021 Kan. S. Ct. R. 220). Most of the evidence supporting Boot Hill's statement of uncontroverted facts was weather data from the National Weather Service establishing there was a severe snow and ice storm in the Dodge City area starting on January 13, 2017, and ending on January 16, 2017.
Lacost responded to the summary judgment motion, objecting to Boot Hill's facts on legal grounds and arguing the inapplicability of the winter storm doctrine. But Lacost did not controvert most of Boot Hill's fact statements. Lacost asserted additional facts mainly supported by security camera photos of the parking lot at the time of her fall. Boot Hill replied stating that Lacost failed to comply with Supreme Court Rule 141(b) because she did not state whether she controverted Boot Hill's fact statements. Boot Hill did not controvert most of Lacost's additional facts.
The district court heard arguments of counsel on October 31, 2019. On January 21, 2020, the district court filed an order granting summary judgment to Boot Hill and the Contractor based on the winter storm doctrine. The district court adopted Boot Hill's statement of uncontroverted facts and made other findings based on the parties' stipulation of evidence. The district court's findings of fact are set forth below:
"1. A strong winter storm affected much of central and southwest Kansas starting as early as Friday, January 13, 2017, at some locations, and ended early Monday, January 16, 2017.
"2. Defendant Steve's Welding pretreated Defendant Boothill's premises with salt/ice melt on January 13, 2017, then repeated the treatment twice more, on January 15 and 16, 2017.
"3. The greatest ice accretion occurred late Saturday evening on January 14, 2017 and continued into late afternoon on Sunday, January 15, 2017.
"4. Damage caused by the storm to trees and subsequently, power lines, centered on Dodge City in Ford County, Kansas.
"5. National Weather Service maps show that 1.0" to 1.5" of ice accumulated from the storm in the Dodge City area between January 14-16, 2017.
"6. National Weather Service maps show a liquid water equivalent of 2-3" from the ice in the Dodge City area between January 14-16, 2017.
"7. The National Weather Service's climatological data for Dodge City, Kansas shows that precipitation on January 14, 2017 was .44 inches. On January 15, 2017, the precipitation was 1.41 inches, and on January 16, 2017, it was another .51 inches.
"8. The National Weather Service's climatological data for Dodge City, Kansas shows that on January 14, 2017, the low temperature was 25 degrees and the high temperature was 34 degrees.
"9. The National Weather Service's climatological data for Dodge City, Kansas shows that on January 15, 2017, the low temperature was 30 degrees and the high temperature was 31 degrees.
"10. The Natural Weather Service's climatological data for weather in Dodge City, Kansas shows that on January 16, 2017, the low temperature was 31 degrees and the high temperature was 33 degrees.
"11. Plaintiffs' fall occurred in the early morning hours of Sunday, January 15, 2017, between 3:00 a.m. and 5:00 a.m.
"12. On Sunday evening, January 15, 2017, KAKE News reported that heavy rains had frozen trees and power lines and damage from the storm was ‘really bad’.
"13. KWCH.com reported on Sunday, January 15, 2017 at 10:38 p.m., that Dodge City schools would be cancelled for Tuesday. The story was updated on Monday, January 16, 2017 to state that freezing rain would ‘stick around for most of Kansas today.’ The news article reported that as of Monday, January 16, 2017, thousands of people were still without power.
"14. Plaintiff reported her fall to Defendant Boothill a week later, on January 21, 2017.
"15. Plaintiff submitted numerous exhibits which contained photographic evidence comprised of still-frame photos taken from Defendant Boothill's security cameras. In these exhibits it shows that the Plaintiff's fall occurred when she stepped up on a curb to cross a median in the parking lot. Plaintiff refers to this median as ‘an elevated section of the lot.’
"16. The Court finds that these exhibits also clearly show that there is an unobstructed sidewalk, complete with marked cross-walks, running through the parking lot immediately adjacent to the curb and elevated median that Plaintiff stepped up on. In fact, the Plaintiff was stepping off of said sidewalk onto the elevated median at the time the fall occurred.
"17. The Court further finds that the Plaintiff's exhibits ‘4a’ through ‘4i’ clearly show that the camera is partially obstructed by an icicle in several of the frames that were taken at the time the Plaintiff's fall was recorded, indicating that the conditions were icy and not merely wet as the Plaintiff argues."
Based on these facts, the district court made these conclusions of law:
"1. A business proprietor must use ordinary care to keep those portions of the premises which can be expected to be used by a business invitee in a reasonably safe condition. However, a proprietor is not an absolute insurer of the safety of customers. Agnew v. Dillons, Inc. , 16 Kan. App. 2d 298, 300, 822 P.2d 1049 (1991).
"2. A business proprietor, absent unusual circumstances, may await the end of a winter storm and a reasonable time thereafter to remove ice and snow from outdoor entrance walks, platforms, or steps because it is impractical to take action earlier. Id at 304.
"3. A requirement that a business proprietor continually expend effort, during a winter storm, to remove frozen precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden beyond that of ordinary care. Id at 301.
"4. Based on the Kansas Winter Storm Doctrine, as established in Agnew and later adopted by the Kansas Supreme Court as sound public policy in Jones v. Hansen , 254 Kan. 499, 510-11, 867 P.2d 303 (1994), the Court has held that a business proprietor does not breach the duty of ordinary care by not removing accumulated precipitation from exterior surfaces during a winter storm and a reasonable time thereafter, absent unusual circumstances.
"5. Kansas cases have further held that a pedestrian bears some responsibility for his or her own safety when going out in inclement weather. ‘Every pedestrian who ventures out at such a time knows he or she is risking the chance of a fall and of a possible serious injury.’ Agnew citing Walker v. The Memorial Hospital , 187 Va. 5, 45 S.E. 2d 898 (1948). This principle has also been upheld in later cases such as Childs v. Goodland Economy Lodging, Inc. , 277 P.3d 1193 (Kan. Ct. App. 2012, unpublished).
"6. In the present case, Defendant Boothill took reasonable measures to pretreat its premises on January 13, 2017 prior to the storm moving into the area. Boothill then took additional reasonable measures to treat the premises with salt/ice melt after the storm had started January 15th then again on January 16, 2017.
"7. The Plaintiff's fall occurred between 3:00 a.m. and 5:00 a.m. on January 15, 2017, while the storm was still in progress. Based upon the Kansas Winter Storm Doctrine, Defendant Boothill had taken reasonable precautions to treat its premises under the weather conditions occurring at that time and did not breach the duty of ordinary care.
"8. Plaintiff has failed to show that there were any unusual circumstances present at the time of the incident that would make the Kansas Winter Storm Doctrine inapplicable.
"9. The Court finds that the Kansas Winter Storm Doctrine applies in this matter and acts to bar the Plaintiff's claims. Plaintiff's claims fail as a matter of law."
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