McGee By and Through McGee v. Chalfant

Decision Date01 March 1991
Docket NumberNo. 65123,65123
Citation806 P.2d 980,248 Kan. 434
PartiesRachel McGEE, By and Through Charlie McGEE, her natural father, guardian, and next friend, Appellee, v. Thomas C. CHALFANT, Defendant; Herbert R. Hess, as special administrator of the estate of Curt Cooper, deceased; and Sam Lett, Appellants.
CourtKansas Supreme Court

Syllabus by the Court

1. On a motion for summary judgment the burden on a party seeking summary judgment is strict. In ruling on the motion, 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. On appeal, we apply the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. Summary judgment is proper where the only questions presented are questions of law.

3. To recover for 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. The existence of a legal duty is a question of law to be determined by the court.

4. As a general rule, in the absence of a "special relationship" there is no duty on an actor to control the conduct of a third person to prevent harm to others. A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another.

5. The threshold requirement for the application of the Restatement (Second) of Torts § 324A (1964) is a showing that the defendant undertook, gratuitously or for consideration, to render services to another. In order to meet this requirement, the evidence must show the defendant did more than act, but through affirmative action assumed an obligation or intended to render services for the benefit of another.

6. A duty is owed to third persons by one who undertakes, by an affirmative act, to render aid or services to another and then is negligent in the performance of that undertaking. One who does not render aid or services to another and has not agreed to do so does not owe a duty to third persons.

7. A person who allows an intoxicated person to drive but does not otherwise exercise control over the intoxicated person has assumed no duty to third persons and is not liable for injuries subsequently caused by the intoxicated driver.

8. Under the principles of the Restatement (Second) of Torts § 324A (1964), the extent of the undertaking defines the scope of the duty. The defendants in this case did not owe a duty of care to an injured third person where defendants did not take control over an intoxicated tortfeasor but only agreed to transport him to his vehicle. Although defendants had knowledge the tortfeasor was intoxicated, they did not undertake a duty to prevent him from driving.

Gerald L. Green, of Gilliland & Hayes, P.A., Hutchinson, argued the cause, and John F. Hayes, of the same firm, argued the cause and was on the brief, for appellant Sam Lett.

Herbert R. Hess, of Hess, Leslie & Brown, Hutchinson, argued the cause and was on the brief, for appellant Estate of Curt Cooper.

Phillip R. Fields, of Law Office of Phillip R. Fields, Wichita, argued the cause and Steven P. Smith, of the same firm, was on the brief, for appellee.

HERD, Justice:

This is a tort action for personal injuries suffered by Rachel McGee when the vehicle in which she was riding collided with an automobile driven by Thomas Chalfant. McGee sued Thomas Chalfant for negligent operation of the vehicle while under the influence of alcohol; Chalfant's parents, Stephen and Julia Chalfant, for negligent entrustment of a motor vehicle and failure to exercise proper care over Chalfant; and Raymond Webster and Ronald Gingerich for supplying alcoholic beverages to Thomas Chalfant, a minor. After settlement, the actions against Stephen and Julia Chalfant, Raymond Webster, and Ronald Gingerich were dismissed. In an amended petition, McGee sued Curt Cooper, since deceased, and Sam Lett, alleging they undertook control and custody of Thomas Chalfant in transporting him to his automobile and knowingly and negligently permitted Chalfant to operate an automobile while he was intoxicated.

Cooper and Lett each sought summary judgment on the grounds that they did not take control or custody of Chalfant and, therefore, did not owe a duty to Chalfant or McGee. The district court determined material facts were in dispute as to whether Cooper and Lett exercised custody and control over Chalfant and ruled summary judgment was not proper. Subsequently, the district court determined the decision denying summary judgment involved controlling questions of law and granted Cooper's and Lett's motions for an interlocutory appeal. Pursuant to K.S.A. 20-3018(c), the appeal was transferred to this court.

The controlling facts follow. On May 8, 1987, around 7:00 p.m., Thomas Chalfant drove to a party at the Webster residence. He parked his car on the street, a bit north of the residence, and entered the back yard where keg beer was being served. Chalfant drank four or five glasses of beer over a two-hour period and then left the party with friends. The group drove around town for awhile and then went to a second party at "Briarwood," which they soon left after discovering liquor was not being served. Eventually, the group arrived at a party in "Lakewood" where free beer was available. According to Chalfant, he drank "quite a bit of beer" but could not remember exactly how much he consumed.

As the hour became late Chalfant remembered he was under a midnight curfew and began to seek a ride home. Curt Cooper and Sam Lett were at the Lakewood party. Upon request, Cooper, a neighbor of Chalfant's, said he could not take Chalfant home but would take him to his car. It was clear to both Cooper and Lett that Chalfant was intoxicated. Lett drove Cooper's car back to the Webster residence and, according to Chalfant, let him out next to his own car. Chalfant remembers nothing after entering his own car. Lett asserts he parked across the street from the Webster residence and waited in the car while Chalfant and Cooper went inside. Lett also contends he was not familiar with Chalfant's car. Finally, Lett claims Chalfant did not suggest taking him home, but instead, requested a ride back to the Webster party.

Very early on May 9, while driving home from the Webster party, Chalfant's automobile crossed the center line and collided with a vehicle driven by Melissa O'Neal. Rachel McGee, a passenger in the O'Neal automobile, suffered serious head injuries.

The sole issue presented by this interlocutory appeal is whether summary judgment was properly denied under the facts herein. We first review the rules with regard to summary judgments. The burden on a party seeking summary judgment is strict. 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. On appeal, we apply the same rule, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Hammig v. Ford, 246 Kan. 70, 72-73, 785 P.2d 977 (1990).

Summary judgment is proper where the only questions presented are questions of law. Barber v. Williams, 244 Kan. 318, 319, 767 P.2d 1284 (1989). To recover for 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. Wicina v. Strecker, 242 Kan. 278, 280-81, 747 P.2d 167 (1987). The existence of a legal duty is a question of law to be determined by the court. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).

Bearing in mind those rules, let us now consider whether Cooper and Lett owed a duty of care to McGee under the facts of this case. McGee contends Cooper and Lett are liable to her under the Restatement (Second) of Torts § 324A (1964) for failure to exercise reasonable care in the performance of a voluntary undertaking, and thereby increasing the risk of harm to third persons. McGee does not contend Cooper and Lett had a duty to take Chalfant home. Rather, she asserts they assumed a duty to her when they agreed to transport Chalfant to his automobile and negligently exercised that duty when they transported Chalfant, visibly intoxicated, to his automobile. McGee asserts it was reasonably foreseeable that an intoxicated driver would increase the risk of harm to herself and other travelers on public roads.

Cooper and Lett argue they had no duty to McGee because they undertook only to transport Chalfant to his automobile, which they did with reasonable care. Further, Cooper and Lett disclaim the existence of a special relationship with Chalfant which would extend a duty owed to him to McGee.

As a general rule, in the absence of a "special relationship" there is no duty on an actor to control the conduct of a third person to prevent harm to others. Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988); Restatement (Second) of Torts § 315 (1964). A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another. Restatement (Second) of Torts §§ 316-320 (1964).

When the existence of a special relationship is lacking between an actor and another, the actor may still be liable to third persons when he negligently performs an undertaking to render services to another which he should recognize as necessary for the protection of third persons. Section 324A provides:

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is...

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