Mozier v. Parsons, Civ. A. No. 93-2158-GTV
| Decision Date | 18 May 1994 |
| Docket Number | 93-2159-GTV.,Civ. A. No. 93-2158-GTV |
| Citation | 852 F. Supp. 925 |
| Court | U.S. District Court — District of Kansas |
| 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. |
COPYRIGHT MATERIAL OMITTED
Mark C. Owens, Bennett, Lytle, Wetzler, Winn & Martin, Prairie Village, KS, Peter A. Martin, Redstone, CO, for plaintiffs.
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, Overland Park, KS, for Stephen Howell, State Farm Fire & Cas. Co.
These are 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 consolidated cases are before the court on defendants' motion for summary judgment (Doc. 48). For the reasons set forth below, the motion is denied.
Plaintiffs John O. Mozier, Jr. and Nancy G. Mozier are the parents of the decedent, Emily Mozier. They are Missouri citizens, as was Emily at the time of her death. Nancy G. Mozier is the sister of defendant Charles Parsons. John O. Mozier, Sr. is the duly appointed and acting Special Administrator of Emily's estate by reason of Letters of Administration issued by the District Court of Johnson County, Kansas. Defendants are citizens and residents of Kansas, and this court has jurisdiction pursuant to 28 U.S.C. § 1332.
This accident occurred at the Parsons' home near Fort Scott, Kansas, and the parties agree that Kansas substantive law is to be applied. Emily's parents have brought their action for wrongful death pursuant to K.S.A. § 60-1901, et seq. The administrator seeks to recover for Emily's estate damages related to conscious pain and suffering experienced by Emily prior to her death, pursuant to K.S.A. § 60-1801.
Following is a summary of the material uncontroverted facts established by the parties in accordance with the requirements of Fed.R.Civ.P. 56 and D.Kan.Rule 206(c). The court notes that plaintiffs, in their memorandum in opposition to the motion for summary judgment, apparently attempt to controvert some or all of defendants' statement of uncontroverted facts. Plaintiffs, however, failed to set forth "a concise statement of material facts as to which plaintiff contend a genuine issue exists." D.Kan.Rule 206(c). In general, plaintiffs' statement does not contradict the facts presented by defendants, but rather serve as a statement of additional facts, and the court will treat it as such.
On April 21, 1991, the Moziers were social guests at the home of defendants Charles and Brenda Parsons. The Parsons had completed installation of a swimming pool on their property just two weeks earlier. Those present had been swimming in the pool during the afternoon and then returned to the house for supper. Some time after supper Emily left the house. She was later found floating in the pool. She was not breathing and had no heart beat. Resuscitation efforts at the pool side and the hospital served only to restore breathing with the aid of a respirator. Heart beat was restored after emergency treatment at the hospital. Emily never regained consciousness, but did blink her eyes and make some slight movement. She died two days later.
Emily was a generally well-behaved 3½ year old girl who listened to her parents and other adults. On the day of the accident, Emily was told by her parents and Brenda Parsons not to go near the pool without an adult. Emily was old enough to understand what that meant. Emily's parents were present at the Parsons' home at all times that day with Emily, and had not specifically entrusted the supervision of Emily to the Parsons. At the same time, both families informally shared responsibility for supervising each other's children.
The Parsons' home is located on a 60 acre tract in rural Bourbon County, just outside of Fort Scott, Kansas. The nearest house is approximately a quarter of a mile away, and their pool is shielded from public view by the house. The Parsons did not install a fence or any other safety devices at the time their pool was completed. The doors leading from the house to the pool area had latches that were out of Emily's reach, but they were not locked or latched at the time of the accident. There had been no injuries at the pool prior to this accident.
Prior to installing the pool, the Parsons discussed the desirability of a fence as a safety measure with Kendall Baumann, the pool salesman and installer. The Parsons ultimately decided against installing a fence because of the cost, the fact that there were no neighbors nearby, and information that they had received indicating that a fence was not required by their insurer. Baumann supplied the pool, but Charles Parsons acted as owner-contractor. Baumann also described other safety devices such as door locks and alarms which would alert residents when someone left the house. Baumann furnished the Parsons with safety pamphlets which contained information regarding the propensity of children to be attracted to pools. The Parsons finally did install a fence in 1993 after the birth of their youngest child, at a cost of $800.00.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, 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." Fed.R.Civ.P. 56(c). The court considers all evidence and reasonable inferences therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). The non-moving party, however, "may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Thus, summary judgment may be entered "against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).
Defendants have moved for summary judgment based on two grounds. First, defendants argue that plaintiffs cannot establish willful or wanton negligence on the part of defendants, as is required in cases involving injuries to licensees. Second, defendants contend that summary judgment is appropriate in the survival action filed by the Administrator of Emily's estate because plaintiffs have produced no evidence of conscious pain and suffering.
While plaintiffs contend they can establish that defendants' conduct constituted willful and wanton negligence, plaintiffs also argue that the proper standard to be applied in this case is one of ordinary negligence. The duty owed to a plaintiff under Kansas premises liability law depends upon the status of the plaintiff at the time of the injury. Bowers v. Ottenad, 240 Kan. 208, 210, 729 P.2d 1103 (1986). The common law classifications of trespassers, licensees, and invitees are used to determine the duty owed by a landowner or occupier of land to the entrants on the land.
A trespasser is one who enters on the premises of another without any right or lawful authority and without permission of the possessor of the premises. The possessor owes the trespasser a duty to refrain from wilfully, wantonly, or recklessly injuring him or her. Gerchberg v. Loney, 223 Kan. 446, 448, 576 P.2d 593 (1978).
An invitee is one who enters or remains on the property at the invitation of the landowner or occupier for the benefit of the inviter or the mutual benefit of both inviter and invitee. Gerchberg, 223 Kan. at 449, 576 P.2d 593. If a plaintiff is classified as an invitee, the possessor owes that plaintiff the duty to exercise ordinary care, including a duty to protect and warn about any danger which may be reasonably anticipated. Graham v. Loper Elec. Co., 192 Kan. 558, 563, 389 P.2d 750 (1964).
Finally, a licensee is one who is on the premises at the express or implied consent of the possessor of the premises. The category of licensee includes social guests. Gerchberg, 223 Kan. at 448, 576 P.2d 593. Injury to a licensee resulting from the possessor's ordinary negligence will not subject the possessor to liability. A possessor only owes a licensee the duty to refrain from wilfully, wantonly, or recklessly injuring him or her. Duckers v. Lynch, 204 Kan. 649, 651, 465 P.2d 945, 947 (1970).
The Kansas Supreme Court, in a decision rendered on January 21, 1994, has abolished the distinction between invitees and licensees, and held that the standard for both categories of plaintiffs will be one of reasonable care under all the circumstances. See Jones v. Hansen, 254 Kan. 499, 867 P.2d 303 (1994). That change, however, is to only be applied prospectively from the date of the decision. Id., 867 P.2d at 311. Since this cause of action accrued in 1991, the standards of care described above, in effect prior to the Jones decision, will be applied to the facts of this case.
The parties agree that since Emily was a social guest defendants owed her only a duty to refrain from wilfully, wantonly, or recklessly injuring her, unless some exception applies. Plaintiffs argue alternatively for two exceptions, either of which would raise the standard imposed on...
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