McDermott v. Midland Management, Inc., 91-3299

• Citation: 997 F.2d 768
• Decision Date: 28 June 1993
• Docket Number: No. 91-3299,91-3299
• Parties: Mary McDERMOTT, Plaintiff-Appellant, v. MIDLAND MANAGEMENT, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 768

997 F.2d 768

Mary McDERMOTT, Plaintiff-Appellant, v. MIDLAND MANAGEMENT, INC., Defendant-Appellee.

No. 91-3299.

United States Court of Appeals Tenth Circuit.

June 28, 1993.

Ronald D. Heck of Heck & Sheppeard, P.A., Topeka, KS, for plaintiff-appellant.

John A. Bausch of Benfer & Bausch, P.A., Topeka, KS, for defendant-appellee.

Before LOGAN, TACHA, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This case comes before us on appeal of a district court order granting summary judgment to the defendant. The plaintiff in this case was injured when an employee of the defendant, the manager of the plaintiff's apartment building, let a stranger into her apartment. The district court determined as a matter of law that the actions of the defendant were not a foreseeable cause of the plaintiff's injuries. Because we determine that the issue of foreseeability in this case should not have been resolved on summary judgment, we reverse and remand for further proceedings.

FACTS

The plaintiff, Mary McDermott, worked as an officer at the Topeka Pre-Release Center, a minimum security criminal facility. She lived alone at the Brookfield Village Apartments in Topeka, Kansas. Tom Dixon, an employee of the defendant Midland Management, was the manager of the apartments. He knew of McDermott's employment and had been asked not to give her address or phone number to anyone.

Michael Carpenter was a former inmate of the Topeka Pre-Release Center, where he had met McDermott. On the morning of October 30, 1988, Carpenter approached Dixon at the Brookfield Village Apartments and explained that McDermott had left him in Kansas City. Carpenter, who by appearance, speech, and dress was non-threatening, explained that he had been allowed to store some personal belongings in McDermott's apartment and that he wanted to retrieve them. He claimed that he had knocked on McDermott's door and that there was no answer. Dixon had never seen Carpenter before and he did not request to see any identification.

Dixon attempted to reach McDermott by telephone but was notified by a recording that her service had been disconnected. McDermott was two months behind in her rent and Dixon could not recall having seen her in several days. Concerned for her well-being, Dixon went to McDermott's apartment. He was accompanied by Carpenter. Without notice or consent, Dixon opened McDermott's door with his pass key and entered. McDermott was home and in fact had heard Carpenter knocking earlier. She had been able to identify Carpenter from a side window and chose not to answer her door. McDermott confronted Dixon and Carpenter and asked both of them to leave. Dixon told McDermott that Carpenter wished to see her. Arguments ensued between the parties. At some point, Carpenter stepped into the apartment, moved around Dixon, and struck McDermott in the face. She has undergone several operations for her injuries and still suffers from a loss of vision and facial deformity.

McDermott brought this negligence action against Midland Management, Inc. She claims that Midland's agent, Dixon, was negligent in opening her apartment door without notice or consent and that this was the proximate cause of her injuries. The district court held on summary judgment that Carpenter's intentional tortious conduct was the "direct, separate wholly independent and efficient intervening cause of [the] plaintiff's injuries." Memorandum and Order, No. 90-1014-C at 13. McDermott now appeals. For the reasons stated below, we reverse and remand for trial.

DISCUSSION

I. Standard of Review

"We review the grant or denial of summary judgment de novo. We apply the same legal standard used by the district court under Fed.R.Civ.P. 56(c)...." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) (citations omitted). "Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The record is viewed in the light most favorable to the party opposing summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).

II. Legal Analysis

Negligence is defined under Kansas law as the lack of due care or lack of that care which a reasonable person would exercise given a particular set of circumstances. ¹ Rowell v. City of Wichita, 162 Kan. 294, 176 P.2d 590, 595 (1947). In order to recover under a negligence theory, the plaintiff must show duty, breach, proximate cause, and injury. ² Id. (citing Jones v. Atchison, T. & S.F. Ry. Co., 98 Kan. 133, 157 P. 399 (1916)). Proximate cause is "that cause which in natural and continuous sequence, unbroken by any efficient intervening cause produces the injury and without which the injury would not have occurred." Id., 176 P.2d at 595-96; see also Gard v. Sherwood Constr. Co., 194 Kan. 541, 400 P.2d 995, 1000 (1965).

Generally, there is no proximate cause where the chain of events is broken by the intervention of a "new, separate, wholly independent, and efficient intervening cause." Finkbiner v. Clay County, 238 Kan. 856, 714 P.2d 1380, 1384 (1986); accord Gard, 400 P.2d at 1000. However, liability will still attach despite the existence of an intervening cause where the intervening cause was foreseen or might reasonably have been foreseen. Citizens State Bank v. Martin, 227 Kan. 580, 609 P.2d 670, 677 (1980); Cooper v. Eberly, 211 Kan. 657, 508 P.2d 943, 949 (1973); George v. Breising, 206 Kan. 221, 477 P.2d 983, 988 (1970); Gard, 400 P.2d at 1000; Steele v. Rapp, 183 Kan. 371, 327 P.2d 1053, 1055, 1059, 1062 (1958); Rowell, 176 P.2d at 596.

In the instant case, the district court found as a matter of law that Carpenter's tortious act broke the chain of causation between Kansas has been very emphatic that, except in cases where only one inference can be drawn from the facts, negligence, proximate cause, and foreseeability are questions of fact for the jury. See St. Clair v. Denny, 245 Kan. 414, 781 P.2d 1043, 1047 (1989); Baker v. City of Garden City, 240 Kan. 554, 731 P.2d 278, 281 (1987); Gard, 400 P.2d at 1000, 1002; Rowell, 176 P.2d at 595.

                Dixon's opening of the door and the plaintiff's injuries.   The court concluded therefore that Dixon's acts were not the proximate cause of the injuries to the plaintiff, and granted summary judgment in favor of the defendant.   The question presented to us is whether the district court properly made these determinations on summary judgment
                

As might be expected in an area of the law in which so much depends on the factual scenario of the particular case, the holdings of the Kansas cases that address causation are not clearly dispositive of the issue. However, we find that those cases whose facts most closely approximate those of the instant case support the conclusion that the district court improperly granted summary judgment. See Steele, 327 P.2d at 1065 (holding that demurrer improperly granted because dropping bottle of flammable liquid was reasonably probable such that it was not an intervening cause in action against bottle manufacturer); Rowell, 176 P.2d at 597 (holding that demurrer on grounds of intervening act was inappropriate where stadium owner reasonably should have anticipated that glass bottles distributed at sporting event would be pushed or thrown and injure patrons); see also Cooper, 508 P.2d at 950-51 (upholding judgment for the plaintiff who was injured in collision with horse on road, finding that trespasser's opening of gate was not intervening cause in light of defendant's failure to lock gate and defendant's knowledge that horses had previously escaped and that trespassers often entered property); Breising, 477 P.2d at 987 (implying that car repair shop may have been liable to owner of vehicle that was left with keys in ignition and was subsequently stolen, but upholding summary judgment against individual who was injured in an accident with thief).

The Kansas courts have approved summary judgment in other cases which we find distinguishable from the instant case. See Sly v. Board of Education, 213 Kan. 415, 516 P.2d 895, 903-04 (1973) (holding that summary judgment in favor of the defendant was proper where student's injuries were the result of an unforeseeable attack by other students before school); Hickert v. Wright, 182 Kan. 100, 319 P.2d 152, 160-61 (1957) (upholding demurrer in wrongful death action growing out of an auto accident against mechanics who installed tube in tubeless tire one month before accident, where court found reckless driving to be an intervening cause); Stevenson v. Kansas City, 187 Kan. 705, 360 P.2d 1, 6 (1961) (finding demurrers appropriate against landlord and tenants of auditorium because it was unforeseeable that plaintiff would be assaulted on her way to the restroom during the sporting event). In those cases the injuries were caused by independent, unrelated events, the defendants had not directly created the opportunity for the intervening acts, the actions often asserted the defendants' failure to act rather than an affirmative action by the defendant, and there was often a sizeable time delay between the defendants' acts and the resulting injuries.

We conclude that, on the record before us in this case, there are sufficient facts such that a reasonable juror, viewing the evidence in the light most favorable to the plaintiff, could have found that Carpenter's attack was foreseeable and that Dixon's actions were therefore the proximate cause of the plaintiff's injuries.

Dixon, the apartment manager, was aware that the plaintiff was single, lived alone, and worked at the Topeka Pre-Release Center where she was in daily contact with criminals. In fact, the plaintiff had specifically asked Dixon not to release...