Mostert v. CBL & Associates

• Decision Date: 14 August 1987
• Docket Number: No. 86-220,86-220
• Citation: 741 P.2d 1090
• Parties: Gerrit (Dutch) MOSTERT, Personal Representative of the Estate of Kumi Maria Mostert, for and on Behalf of Dutch and Kay Mostert, Appellant (Plaintiff), v. CBL & ASSOCIATES and American Multi Cinema, Inc., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1090

741 P.2d 1090

56 USLW 2128

Gerrit (Dutch) MOSTERT, Personal Representative of the Estate of Kumi Maria Mostert, for and on Behalf of Dutch and Kay Mostert, Appellant (Plaintiff), v. CBL & ASSOCIATES and American Multi Cinema, Inc., Appellees (Defendants).

No. 86-220.

Supreme Court of Wyoming.

Aug. 14, 1987.

Robert G. Pickering and Henry F. Bailey, Jr. of Bailey, Pickering, Stock & Welch, Cheyenne, for appellant (plaintiff).

Peter K. Michael and Nicholas G. Kalokathis of Lathrop & Uchner, Cheyenne, for appellee (defendant) CBL & Associates.

Weston W. Reeves and M. Greg Carlson of Reeves & Murdock, Casper, for appellee (defendant) American Multi Cinema, Inc.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

Appellant Gerrit (Dutch) Mostert, personal representative of the estate of Kumi Maria Mostert and on behalf of Dutch and Kay Mostert, filed a complaint alleging negligence and/or willful, wanton and reckless conduct on the part of appellees, Frontier Mall complex owners, CBL & Associates (CBL) and American Multi Cinema, Inc. (AMC), after Kumi Maria Mostert tragically drowned when the vehicle in which she was riding was engulfed by flood waters. Before trial the court granted appellee AMC's motion to dismiss with prejudice and also granted appellee CBL a summary judgment. On appeal, appellant urges the following issues:

1. "Whether the court incorrectly converted a motion to dismiss filed by one of the defendants [CBL] into a motion for summary judgment?"

2. "Whether liability should be imposed against a theatre owner [AMC] and the owner of the complex in which the theatre is located [CBL], both of whom had knowledge of flash flood warnings (and a demand by city officials that citizens stay off the streets to avoid injury from severe flash flooding), for negligently failing to restrain or warn their patrons of the foreseeable, dangerous consequences of their leaving the theatre and mall complex and traveling on city streets which proximately caused the death by drowning of a seven year old girl, and severe injury to her parents?"

The status of appellees is substantially different. Therefore, we will address the following issues.

I

Whether liability should be imposed against a theatre owner [AMC] for negligently failing to restrain or warn patrons of the foreseeable, dangerous consequences of their leaving the theatre.

II

Whether the court incorrectly converted a motion to dismiss filed by CBL into a motion for summary judgment.

III

Whether liability should be imposed against the owner of the complex in which the theatre is located [CBL], for negligently failing to restrain or warn patrons of the foreseeable, dangerous consequences of their leaving the mall complex.

We reverse in part, affirm in part and remand to the trial court for disposition in conformity with this opinion.

On the evening of August 1, 1985, Gerrit (Dutch) and Kay Mostert and their daughter, Kumi Maria, were patrons of appellee American's Frontier Six Theatres (AMC) located in the Frontier Mall complex owned by appellee CBL & Associates (CBL), in Cheyenne, Wyoming.

During the evening, Cheyenne experienced a severe thunderstorm which caused the National Weather Service, civil defense authorities, and local law enforcement officials to issue severe thunderstorm, flash flood and tornado warnings. As the storm became progressively worse, local emergency management officials demanded that citizens stay indoors in a safe area and off the streets to avoid being injured or killed. Appellees were aware of the severity of the August 1, 1985, storm; were aware of the National Weather Service, civil defense, and local law enforcement warnings, as well as the severe flooding occurring in Cheyenne during the movie. However, the Mostert family never became aware of the warnings or severity of the storm because they were inside AMC's theatre, and they and other patrons attending the movie were not warned.

After the movie, the Mosterts left the theatre through an exit leading directly into the parking lot. They traveled eastward on Del Range Boulevard, and at some point on the road the Mosterts' vehicle was struck by flood waters. In an attempted escape, Kumi Maria drowned. Thereafter, a complaint was filed, alleging negligence and/or willful, wanton and reckless conduct on the part of both appellees.

Appellee AMC filed a motion to dismiss on the grounds that no duty existed to warn or act for the protection of its patrons, the Mostert family, alleging that the Mosterts failed to state a claim upon which relief could be granted under Rule 12(b)(6), Wyoming Rules of Civil Procedure. The action against AMC was dismissed on July 17, 1986.

Thereafter, CBL moved to dismiss the complaint. The CBL motion contained affidavits of two Frontier Mall employees, and portions of Mr. and Mrs. Mostert's deposition. Appellant opposed the motion to dismiss, but based on the court's ruling on AMC's motion to dismiss, appellant suggested that an order granting the motion be entered to expedite appeal. ¹ An order granting CBL a summary judgment was entered on August 1, 1986. Appellant appeals the orders as to both appellees. A final amended notice of appeal was filed by appellant on August 5, 1986.

I

Appellant alleges that the trial court erred when it dismissed the complaint against AMC for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), W.R.C.P.

According to our standard of review we will sustain a dismissal of a complaint only if it shows on its face that the plaintiff was not entitled to relief under any set of facts. Johnson v. Aetna Casualty & Surety Co. of Hartford, Wyo., 608 P.2d 1299 (1980). In considering such a motion, the "facts alleged in the complaint are admitted and the allegations must be viewed in the light most favorable to plaintiffs." Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733, 734 (1979). Dismissal is a drastic remedy, and is sparingly granted. Harris v. Grizzle, Wyo., 599 P.2d 580 (1979). In Lewis v. State Board of Control, Wyo., 699 P.2d 822, 824 (1985), we said:

" * * * In reviewing a dismissal under Rule 12(b)(6) [W.R.C.P.], this court will only sustain such dismissal if the complaint shows on its face that the plaintiff is not entitled to relief. Johnson v. Aetna Casualty and Surety Co. of Hartford, Conn., Wyo., 608 P.2d 1299 (1980), appeal after remand 630 P.2d 514, cert. denied 454 U.S. 1118, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981), reh. denied 455 U.S. 1039, 102 S.Ct. 1743, 72 L.Ed.2d 157 (1982). Therefore, we treat as true all the allegations of contestants' complaint. Moxley v. Laramie Builders, Inc., Wyo., 600 P.2d 733 (1979)."

Because the trial court dismissed appellant's complaint on the narrow ruling that AMC had no legal duty, we limit our discussion to duty and make only fleeting reference to other ingredients of negligence such as violation of duty, proximate cause and injury.

Historically, landowners owed no duty to warn or take action to prevent harm to invitees where the risks involved were outside their premises. However, the imprecise term "duty" has no simple definition that is applicable in all circumstances. One commentator has said:

" * * * It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid to analysis in itself. Yet it is embedded far too firmly in our law to be discarded, and no satisfactory substitute for it, by which the defendant's responsibility may be limited, has been devised. But it should be recognized that 'duty' * * * is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.

" * * *

" * * * [T]he courts have merely 'reacted to the situation in the way in which the great mass of mankind customarily react,' and that as our ideas of human relations change the law as to duties changes with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." Prosser & Keaton on Torts, § 53, pp. 357-359 (5th ed. 1984).

" * * * The judge's function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, * * * the imposition and scope of a legal duty is dependent not only on the factor of foreseeability ( [Cunis v. Brennan ] 56 Ill.2d 372, 375, 308 N.E.2d 617) but involves other considerations, including the magnitude of the risk involved in defendant's conduct, the burden of requiring defendant to guard against that risk, and the consequences of placing that burden upon the defendant. [Citations.]" Nelson by Tatum v. Commonwealth Edison Company, 124 Ill.App.3d 655, 662, 80 Ill.Dec. 401, 465 N.E.2d 513, 519 (1984).

In Gates v. Richardson, Wyo., 719 P.2d 193, 196 (1986), this court quoted Prosser & Keeton, Torts § 54 at 357-358 (1984):

" * * * Duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which leads the law to say that the plaintiff is entitled to protection."

It is stated in Collins v. Memorial Hospital of Sheridan County, Wyo., 521 P.2d 1339, 1341 (1974),

" * * * [t]he writer freely concedes the importance, necessity, and strength of the doctrine of stare decisis * * * but is unable to

utilize this doctrine as a...