Mozier v. Parsons

• Decision Date: 18 January 1995
• Docket Number: 93-2159-GTV.,Civ. A. No. 93-2158-GTV
• Citation: 874 F. Supp. 329
• Parties: John O. MOZIER, Jr. and Nancy G. Mozier, Plaintiffs, v. Charles PARSONS and Brenda Parsons, Defendants. John O. MOZIER, Sr., as Special Administrator of the estate of Emily Elise Mozier, deceased, Plaintiff, v. Charles PARSONS and Brenda Parsons, Defendants.
• Court: U.S. District Court — District of Kansas

874 F. Supp. 329

John O. MOZIER, Jr. and Nancy G. Mozier, Plaintiffs, v. Charles PARSONS and Brenda Parsons, Defendants.

John O. MOZIER, Sr., as Special Administrator of the estate of Emily Elise Mozier, deceased, Plaintiff, v. Charles PARSONS and Brenda Parsons, Defendants.

Civ. A. Nos. 93-2158-GTV, 93-2159-GTV.

United States District Court, D. Kansas.

January 18, 1995.

Mark C. Owens, Bennett, Lytle, Wetzler, Martin & Pishny, L.C., Prairie Village, KS, Peter A. Martin, Redstone, CO, for John O. Mozier, Jr., Nancy G. Mozier.

Zackery E. Reynolds, Fort Scott, KS, for Charles Parsons, Brenda Parsons.

John H. Mitchelson, Wheeler & Mitchelson, Chtd., Pittsburg, KS, for Bauman Pool and Spa Inc.

James L. Sanders, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for Stephen Howell, State Farm Fire & Cas. Co.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

These are consolidated wrongful death and survival actions in which plaintiffs seek recovery for the injury and death of three-and-one-half-year old Emily Mozier who drowned in defendants' swimming pool. These cases are before the court on defendants' motion for reconsideration (Doc. 71) of the court's Memorandum and Order entered on April 7, 1994, which denied defendants' motion for summary judgment. For the reasons explained below, the motion for reconsideration is granted and the court's April 7, 1994, order is amended to grant summary judgment in favor of defendants.

I. Background¹

Emily Mozier was a social guest of defendants at the time of the accident. As a result, the defendants owed her only the duty to refrain from willfully, wantonly, or recklessly injuring her, unless a recognized exception applies to reduce the standard of care to that of ordinary negligence.² In opposing defendants' summary judgment motion, plaintiffs argued that two exceptions apply. The court rejected plaintiffs' first argument based on the active negligence exception. The court ruled, however, that the evidence in the case was sufficient to require that the question of attractive nuisance be submitted to the jury. See Mozier v. Parsons, 852 F.Supp. 925 (D.Kan.1994). Under this theory, defendants could be liable for damages upon a showing of ordinary negligence. If the attractive nuisance doctrine cannot be asserted as a matter of law, defendants could be liable for damages only upon a showing that they willfully, wantonly, or recklessly caused Emily's injuries and death.

After the court's order was entered, defendants filed their motion for reconsideration of the order and a motion to certify a question of law to the Kansas Supreme Court. The court granted the motion for a certified question and deferred ruling on the motion for reconsideration. See Mozier, 852 F.Supp. at 932-33. The question certified was as follows: "In a negligence action involving injury to a child, can the attractive nuisance doctrine be used to establish liability when the injury occurred in a residential swimming pool?"

On January 4, 1995, the Kansas Supreme Court entered an answer to the certified question. See Mozier v. Parsons, 256 Kan. 769, 887 P.2d 692 (Kan.1995). After reviewing its prior holdings related to the attractive nuisance doctrine, the court concluded as follows:

All of our cases to date, beginning with Gilliland v. City of Topeka 124 Kan. 726, 262 P. 493 (1928) in 1928, have consistently held that a swimming pool does not constitute an attractive nuisance and that the doctrine does not apply. We adhere to our prior cases. A swimming pool, public or private, does not belong in the same class with instrumentalities and places regarded as attractive nuisances.

While we do not rule out the remote possibility that there could be a highly unusual and aggravated factual situation that might support consideration of the attractive nuisance doctrine, we hold that, generally, swimming pools, whether public or private, do not constitute an attractive nuisance and are not subject to the attractive nuisance doctrine.

On the facts submitted to us in this case, the answer to the certified question is clearly "no."

Id. at 778, 887 P.2d 692.

II. Analysis

Whether to grant or deny a motion for reconsideration is committed to the court's discretion. Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir.1988). In exercising that discretion, courts in general have recognized three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. Estate of Pidcock v. Sunnyland America, Inc., 726 F.Supp. 1322, 1333 (S.D.Ga.1989); see Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981). This is clearly an appropriate case for reconsideration based on the answer by the Kansas Supreme Court to the certified question.

In light of the answer to the certified question, the court concludes that the attractive nuisance doctrine is not available under the facts of this case to reduce the standard of care owed by defendants to that of ordinary negligence. As a result, in order to survive summary judgment, the plaintiffs must bring forward some evidence by which a reasonable jury could find that defendants willfully, wantonly, or recklessly injured the decedent.

Implicit in the court's April 7, 1994, order was the finding that the evidence advanced by plaintiffs to show that defendants conduct was willful or wanton was insufficient to survive summary judgment. This order will more fully explain that finding.

The Kansas Supreme Court has defined the duty owed to a social guest as "the duty to refrain from willfully, intentionally, or recklessly injuring him," Duckers v. Lynch, 204 Kan. 649, 651, 465 P.2d 945 (1970), or alternatively, "to refrain from willfully or wantonly injuring him." Graham v. Loper Electric Co., 192 Kan. 558, 561, 389 P.2d 750 (1964). "The general rule of negligence has no application to willful or wanton wrongs. A willful wrong involves an intentional act and intentional injury. A wanton wrong involves an intentional act but not an intentional injury; the act is intentional and purposeful, but the consequences of the act are not." Bowman v. Doherty, 235 Kan. 870, 876, 686 P.2d 112 (1984).

In this case there is no allegation that defendants intentionally or willfully caused the injuries suffered by decedent. The only issue is whether defendants' conduct was "wanton" or "reckless," terms which are synonymous. See Duckers, 204 Kan. at 652, 465 P.2d 945 (noting similarity in definitions of the two terms). "A wanton act is something more than ordinary negligence but it is something less than willful injury. To constitute wantonness the act must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to...