Sall ex rel. Sall v. T's, Inc.
| Decision Date | 19 August 2005 |
| Docket Number | No. 93,013.,93,013. |
| Citation | 117 P.3d 896 |
| Parties | Matthew Patrick SALL, By and Through His Natural Parents, Guardians, and Conservators, Kay SALL and David SALL, and Kay Sall and David Sall, Individually, Appellants, v. T'S, INC., d/b/a Smiley's Golf Complex, Appellee. |
| Court | Kansas Supreme Court |
Bryson R. Cloon, of Cloon Law Firm, of Leawood, for appellants.
Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellee.
Before ELLIOTT, P.J., MARQUARDT and McANANY, JJ.
Kay and David Sall (the Salls), acting as Matthew Patrick Sall's guardians and conservators, appeal the trial court's grant of summary judgment to T's, Inc., d/b/a Smiley's Golf Complex (SGC). We affirm.
On June 14, 2001, Patrick and his friend, Christopher Gannon, decided to go golfing. They had discussed the weather that had been stormy earlier in the day. By 4 p.m., the weather was clear. Gannon checked the Weather Channel on television and saw that the storm appeared to be heading out of the area.
On June 14, 2001, Thad Borgstadt, the manager at SGC, opened the course as usual in the morning and testified that the weather was "nice." However, Borgstadt closed the course at approximately 1:15 p.m., after he saw dark clouds in the sky and heard an alert on the television. Borgstadt sounded the horn which alerted golfers that they needed to immediately return to the clubhouse. Borgstadt left SGC at 3 p.m.
Jeff Tull replaced Borgstadt and at 3:50 p.m. Jeff checked the radar on the computer. He noted that the thunderstorm had moved out of the area of SGC. Jeff reopened SGC to the public at 4 p.m. Jeff testified that conditions at SGC were sunny as late as 4:50 p.m.
Gannon estimated that he and Patrick paid their greens fees at approximately 4:45 p.m. and arrived at the first tee box shortly before 5 p.m. Gannon described the weather as "fairly clear." Patrick and Gannon played the first hole and as they were walking to the second tee, they noticed a very light rain. Gannon did not consider the rain to be anything that would cause SGC management to close the course, so they continued to play with the understanding that they would reevaluate their decision if the weather conditions changed.
Patrick's drive on the second hole went wide and it took him a few minutes to locate his ball. As they started putting on the second green, Gannon saw a lightning bolt in the western sky. Gannon thought the lightning was far off but testified that they would quit after they putted out on the second hole.
At approximately 4:50 p.m., Jeff checked the weather radar on the computer. While the computer image was loading, a golf course employee told Jeff that he heard storms would be moving back into the area. When the radar image had loaded, Jeff could see storms to the southwest of SGC.
Jeff walked outside, saw lightning, and blew the horn for two 5-second periods, rotating so that the sound would spread across the SGC complex. At the time that Jeff blew the horn, there were approximately five golfers on the course.
Gannon was holding the flag for the second hole when he heard the horn. After the horn sounded, Gannon saw a second lightning bolt in approximately the same location as where he had seen the first lightning bolt. Patrick putted out, and then Patrick and Gannon started toward the clubhouse.
Gannon testified that as they were walking, he saw a big flash of light followed by a loud boom. Gannon blacked out, fell to the ground, and lay unconscious. When Gannon came to, he could see Patrick face down on the ground. After attempts to rouse Patrick were unsuccessful, Gannon went to the SGC clubhouse for emergency assistance.
Between 5:16 and 5:17 p.m., Gannon arrived at the clubhouse and reported Patrick's injury. Jeff immediately called 911. Several golfers began giving Patrick CPR. Emergency personnel arrived and transported Patrick to the hospital. Patrick was severely injured and now requires total care.
In January 2003, the Salls filed a petition claiming that SGC owed "Patrick the duty to warn him of any dangerous condition it knew about, or should have known about, had Smiley's exercised reasonable care." The Salls claimed that SGC was negligent by failing to: properly monitor the weather; sound a timely warning; utilize lightning detection equipment; have appropriate medical equipment; and render timely and appropriate medical care.
SGC filed a motion for summary judgment claiming that it breached no duty to Patrick. In addition, SGC claimed that any duty it owed to Patrick was satisfied with the timely warning to leave the golf course. In response to SGC's motion for summary judgment, the Salls raised a new issue-that SGC assumed a duty to warn and protect Patrick against dangerous weather because Patrick relied on a weather warning system. To support this claim, they attached Mrs. Sall's deposition where she testified that Patrick told her: "Mom, don't worry; they wouldn't be open if it wasn't safe."
The trial court heard arguments on SGC's motion and concluded that storms are capricious and foreseeing a lightning strike is a matter of speculation. Based on this lack of foreseeability, the trial court concluded that businesses do not have a duty to protect or warn patrons about lightning. The trial court also ruled that the facts of the case were "insufficient to invoke the benefits" of Restatement (Second) of Torts § 323 (1964). SGC's motion for summary judgment was granted. The Salls timely appeal.
Essentially, the Salls' case is based on premises liability law in that golf courses have a duty to warn their patrons about dangerous weather conditions and to protect those patrons from lightning injury.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. 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. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to successfully oppose summary judgment, there must exist a material disputed fact. On appeal, we apply the same rules. Where we find that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).
The Salls claim that Kansas courts recognize the doctrine of premises liability which is not limited to physical defects. They conclude that a force of nature can be a "dangerous condition" that would impose liability.
Kansas has abolished the distinction between licensees and invitees. See Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). The duty of care owed to licensees and invitees is one of reasonable care under the circumstances. The factors to consider in determining whether the land occupier exercises reasonable care under all circumstances are: the foreseeability of harm; the magnitude of the risk of injury in maintaining such a condition of the premises; the individual and social benefit of maintaining such a condition; and the burden upon the land occupier or community, in terms of inconvenience or cost, in providing adequate protection. Jones, 254 Kan. at 509-10, 867 P.2d 303. As a general rule, an owner of a business is not required to insure the safety of his or her patrons or customers. Gardin v. Emporia Hotels, Inc., 31 Kan.App.2d 168, 175, 61 P.3d 732, rev. denied 275 Kan. 963 (2003). As aptly stated by the trial court, "[t]his case turns on whether or not Smiley's had a duty." The Kansas Supreme Court has held that the question of duty is a question of law for the court. Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993).
The Salls contend that Patrick would have been able to protect himself had he been given sufficient warning of the imminent storm. The interesting part of this contention is that Patrick and Gannon saw a lightning strike and ignored it. The second lightning strike occurred as the horn was blown when Patrick and Gannon were on the second green. Instead of immediately returning to the clubhouse, Patrick and Gannon continued to finish the hole. Patrick and Gannon made a conscious decision to finish the hole they were playing, rather than heeding the warning immediately. No one thought there was imminent danger. Mills thought there was no danger and that SGC had blown the horn prematurely; however, he decided to return to the clubhouse.
Kansas courts have not defined foreseeability of lightning strikes within the context of premises liability. However, a Texas court considered whether a lightning strike could be foreseeable. In Macedonia Baptist Church v. Gibson, 833 S.W.2d 557 (Tex.App.1992), a woman was struck by lightning as she exited her church. Prior to the incident, the church had installed a lightning rod. Gibson was injured by lightning which hit the rod and traveled down the grounding cables.
The Texas court ruled that for a result to be legally foreseeable, "all that is required is that the injury be of such a general character as might be reasonably anticipated and that the injured party should be so situated with relation to the wrongful act that the injury to him [or her] or to one similarly situated might reasonably have been foreseen." 833 S.W.2d at 559. The church had been told that lightning would travel down the ground cables and spread into the ground. In this case, the church enhanced the risk of injury by placing the ground cables directly next to the walkway. A person using the walkway could be hit by a side flash; therefore, the...
To continue reading
Request your trial
-
Sall v. T's, Inc., No. 93,013.
...in a split decision affirmed, concluding that SGC owed no duty to protect its patrons from lightning strikes. Sall v. T's, Inc., 34 Kan.App.2d 296, 307, 117 P.3d 896 (2005). We granted the Salls' petition for review and reverse and remand for On June 14, 2001, Patrick and his friend, Christ......