Legleiter v. Gottschalk

• Decision Date: 25 June 2004
• Docket Number: No. 91,191.,91,191.
• Citation: 91 P.3d 1246,32 Kan.App.2d 910
• Parties: BRENT LEGLEITER, Appellant, v. KENNETH GOTTSCHALK d/b/a BRASS RAIL TAVERN, Appellee.
• Court: Kansas Court of Appeals

32 Kan.App.2d 910

91 P.3d 1246

BRENT LEGLEITER, Appellant, v. KENNETH GOTTSCHALK d/b/a BRASS RAIL TAVERN, Appellee.

No. 91,191.

Court of Appeals of Kansas.

Opinion filed June 25, 2004.

Thomas C. Boone, of Law Office of Thomas C. Boone, for the appellant.

Mickey W. Mosier and Nichole Mohning Roths, of Clark, Mize & Linville, Chartered, of Salina, for the appellee.

Before RULON, C.J., PIERRON and HILL, JJ.

PIERRON, J.

Brent Legleiter appeals the district court's granting of summary judgment to Kenneth Gottschalk d/b/a Brass Rail Tavern (tavern), after he was injured in a fight with a third party outside of the tavern. The district court found Legleiter was injured on public property, not possessed or controlled by Gottschalk or his employees, and therefore, as a matter of law, no liability existed on Gottschalk's part to control the actions of third parties. We affirm.

On the evening of October 2, 2001, Brian Gribben was the manager and bartender of the tavern and was the only employee working on a slow Monday night. No problems had occurred that evening until Gribben made the last call a little before 2 a.m. Larry Hamby was playing pool, and he attempted to start another game after Gribben made the last call. Gribben approached Hamby and told him the tavern was closing and he could not play another game. As Gribben walked away, Hamby started a new game. Gribben ended Hamby's game, and an argument ensued. Gribben refunded Hamby's quarter and told him to leave the tavern. After the two exchanged more words, Gribben physically removed Hamby from the tavern. As Gribben took Hamby outside, the tavern emptied to watch the events. Hamby was at the bar with his friends, Legleiter, Darcy Good, Kevin Weaver, and his brother, Randy Lynn. Dustin Karst was at the bar with Shanun and Brandon Niehoff. There were approximately 15 people in the bar at closing time. Outside the tavern, Hamby continued to fight and struggle with Gribben until Gribben took him to the ground and held him there. Gribben told Hamby he would let him go if he calmed down.

As Gribben and Hamby struggled, Lynn retrieved a baseball bat from his car parked across the street from the tavern. Shanun Niehoff stated that he was helping Gribben with a customer who refused to leave the establishment. Lynn ran back toward the fracas and struck Shanun in the leg from behind. Brandon and at least one other person pinned Lynn down on the ground and wrestled the bat away from him. Lynn then ran down the street chased by several men. Karst claimed he helped Neihoff pin Lynn down and that during the incident Legleiter punched him on the top of the head.

Karst approached Legleiter and struck him at least two times. Legleiter was knocked out and became unresponsive. Karst's attack on Legleiter took place entirely upon public property consisting of the sidewalk and street in front of the tavern. The altercation between Karst and Legleiter lasted between 2 and 5 minutes. Karst was pulled off Legleiter by Good and Mark Schoenberger. Schoenberger said Karst punched Legleiter at least 10 times before Legleiter went down and then punched and kicked him until he was unresponsive.

Gribben stated that he did not call for help from anyone else in ejecting Hamby from the tavern. He did not direct anyone to fight with Lynn or Legleiter. Gribben stated that he did not see Karst hit Legleiter because he had already gone back inside the bar. When Gribben talked with Gottschalk the next day about the incident, Gribben said that he never saw Karst fighting with Legleiter. However, Good testified that Gribben was standing 4 or 5 feet from the fight between Karst and Legleiter and that Gribben did not do anything about it. Good said Gribben never called Karst off of Legleiter and that Gribben went back into the bar after the fight was over.

A couple of minutes after Gribben went back into the bar, Good went inside and asked for some towels because Legleiter was bleeding. Gribben gave her some towels. Good asked if there was a phone she could use, and Gribben told her the bar phone did not dial out but there was a pay phone. Gribben did not call the police or call for an ambulance. Good said she called 911 using the pay phone.

Legleiter was severely injured as a result of this event and was hospitalized for an extended period of time. Karst was apparently prosecuted for his actions. Legleiter sued Gottschalk for personal injuries and substantial damages under a theory of respondeat superior and the duty of the owner or his employees to use reasonable and ordinary care regarding patrons of the tavern. The district court found Legleiter was injured on public property, not possessed or controlled by Gottschalk or Gribben, and therefore, as a matter of law, no liability existed on Gottschalk's part to control the actions of third parties, namely Karst.

Legleiter argues Gottschalk owed him a duty to protect him from the criminal acts of a third party and the district court erred in granting summary judgment to Gottschalk. Legleiter contends the district court erred in focusing solely on the public situs of where his injuries occurred when determining the lack of a duty. Legleiter also argues that whether the attack was foreseeable is a question of fact for the jury and that genuine issues of material fact existed as to whether Gribben's actions caused or contributed to the fight that caused his injuries.

The standard of review is familiar. Summary judgment may be granted

"when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rule and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]" Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).

Summary judgment should be granted with caution in negligence actions. Fettke v. City of Wichita, 264 Kan. 629, 632, 957 P.2d 409 (1998). Nevertheless, a defendant is entitled to summary judgment in a negligence case if the defendant shows the claim is supported by no evidence indicating negligence. Crooks v. Greene, 12 Kan. App. 2d 62, 64-65, 736 P.2d 78 (1987). For an action of recoverable negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact. See Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, Syl. ¶ 1, 43 P.3d 799 (2002).

The general common-law theory of premises liability for commercial enterprises is expressed in the Restatement (Second) of Torts § 344 (1963). Kansas adopted § 344 in Gould v. Taco Bell, 239 Kan. 564, 568, 722 P.2d 511 (1986):

"`A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

"`(a) discover that such acts are being done or are likely to be done, or

"`(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.'"

However, a business' duty does not extend to every person who enters the property of the business. "The duty of care owed by a premises owner to an entrant upon the land is dependent upon the status of the person entering the premises." Gould, 239 Kan. at 567.

As observed in Restatement (Second) of Torts § 344, comment a, the duty to protect others from the harmful acts of third persons is only owed to "business visitors," commonly known as invitees. "`An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both the inviter and invitee.'" Mozier v. Parsons, 256 Kan. 769, 771, 887 P.2d 692 (1995) (quoting Gerchberg v. Loney, 223 Kan. 446, 448-49, 576 P.2d 593 [1978]).

As a general rule, an owner of a business does not insure the safety of his patrons or customers. This means the owner of a business ordinarily does not have a duty to provide security to protect against the criminal acts of third parties in a parking lot. However, an exception exists when circumstances indicate that a business owner's customers have a risk of peril beyond the ordinary. Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 548, 856 P.2d 1332 (1993).

We note in the instant case the incident took place on a public sidewalk and not in the business' parking lot.

In Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970), the plaintiff, who was a guest at the defendant's bar, was attacked by a group of other patrons. The court found that the defendant had reason to know that his guests were in danger because the group had been unruly for several hours before the attack. Having been put on notice of the possible danger to other patrons, the defendant had an affirmative duty to protect them. 205 Kan. at 418-19. Similarly in Gould, 239 Kan. 564, 569, the restaurant clerks knew the plaintiff's assailants had started a fight on a previous occasion...