Sall v. T's, Inc., No. 93,013.

• Decision Date: 23 June 2006
• Docket Number: No. 93,013.
• Citation: 136 P.3d 471
• 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

136 P.3d 471

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.

No. 93,013.

Supreme Court of Kansas.

June 23, 2006.

COPYRIGHT MATERIAL OMITTED

Bryson R. Cloon, of the Cloon Law Firm, of Leawood, argued the cause and was on the briefs for appellants.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and Patrick G. Copley, of the same firm, and Richard T. Merker, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, were with him on the briefs for appellee.

The opinion of the court was delivered by DAVIS, J.:

Plaintiffs Matthew Patrick Sall (Patrick), by and through his natural parents, guardians, and conservators, Kay Sall and David Sall, and Kay Sall and David Sall, individually (collectively the Salls), brought a negligence action against defendant T's, Inc., d/b/a Smiley's Golf Course (SGC) for injuries Patrick sustained after being struck by lightning while on the grounds of the defendant's golf course. The district court granted summary judgment to SGC, and the Court of Appeals 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 trial.

On June 14, 2001, Patrick and his friend, Christopher W. Gannan (Chris), decided to go golfing. However, by that afternoon, the sky had turned stormy.

On June 14, Thad Borgstadt, the morning manager for SGC, opened the golf complex as usual. Because the noon television forecast indicated possible storms moving into the area, Borgstadt checked the weather periodically by walking outside and visually checking. Borgstadt testified that he visually checked the weather every 10 to 15 minutes because that was SGC's policy. At approximately 1:15 p.m., Borgstadt noticed dark clouds in the sky and decided to close the complex.

Due to the severe weather, the complex remained closed at 3 p.m. when Jeff Tull, the afternoon manager, replaced Borgstadt. By 3:50 p.m. Tull noticed the skies were clearing, and radar images on the computer in the pro shop showed the thunderstorms were moving out of the area. In another 5 to 10 minutes, the sun came out and Tull opened SGC to the public at 4 p.m.

Patrick and Chris also noticed the weather had cleared. Patrick called SGC to verify that the complex was open. When Patrick's mother questioned him about playing golf after thunderstorms had been in the area, he replied, "`Mom, don't worry; they wouldn't be open if it wasn't safe.'"

Chris estimated they paid their green fees at approximately 4:45 p.m. and arrived at the first tee shortly before 5 p.m. The pair noticed it had started to sprinkle while they walked to the second tee. According to Chris, they discussed whether storms might be moving back into the area. They also discussed the fact that SGC would blow an air horn as a signal to return to the clubhouse in the event of dangerous weather. Chris was familiar with SGC's method of warning golfers because he had been called back to the clubhouse by the sound of an air horn on at least one prior occasion.

By the time Patrick and Chris started putting on the second green, it started raining a little harder. Chris saw a lightning bolt off to the west, but it was far enough away that they were not concerned. According to Chris, it was understood between them that they would finish the hole and start walking back to the clubhouse.

According to Tull, SGC's policies or procedures for inclement weather call for the manager on duty to monitor the local television stations, radar images on the Internet, and visually inspect the weather by stepping outside. SGC also has a weather radio. Although there is no policy concerning the frequency with which the managers check weather conditions, Tull admitted that it is checked more frequently when storms are in the area. If the manager determines it is necessary to bring golfers in off the course, the procedure is to sound an air horn.

At approximately 4:50 to 4:55 p.m., Tull checked the weather on the Internet. While he waited for the radar image to load on the computer, an employee informed him a television news teaser had just reported that storms were moving back into the area. Tull returned to the computer screen which showed storms to the southwest of SGC. Tull walked outside to visually check the weather and noticed dark clouds and lightning to the southwest of the complex. He immediately walked back inside, grabbed the air horn, stepped outside, and sounded the horn for two 7- or 8-second periods. Tull estimated he sounded the air horn at approximately 4:57 to 4:58 p.m. At the time Tull sounded the horn, there were three golfers on the course: Patrick, Chris, and a sole golfer, Toby Mills.

Chris was holding the flag for the second hole when he saw a second bolt of lightning in the same location where he had seen the first lightning bolt. About the same time, Chris and Patrick heard the air horn. Patrick finished his putt, Chris replaced the flag, and they started walking back to the clubhouse. According to Chris' deposition testimony, this all occurred in a matter of seconds. As the pair were walking on the second green, Chris saw a flash and heard a loud boom. Chris was knocked unconscious for an unknown length of time. When he came to, he saw Patrick laying face down and unresponsive. Chris returned to the clubhouse for help; however, he estimated it took him 5 to 10 minutes to get back to the clubhouse because of his own injuries. When Chris arrived at the clubhouse, he asked someone to call 911. The 911 call was received between 5:16 and 5:17 p.m. Patrick never fully recovered from his injuries, and he now requires total care.

The Salls brought a negligence action against SGC. After full discovery, SGC filed a motion for summary judgment. In its ruling from the bench, the district court found there were questions of fact as to whether SGC was negligent; however, the case turned on whether SGC had a duty to protect its patrons from lightning-related injury, a legal question. The court determined a business has no duty to protect or warn patrons of lightning because a lightning strike is not foreseeable. The court also alluded to cost considerations for businesses versus the risk involved. Regarding an assumption of duty under Restatement (Second) of Torts § 323 (1964), the judge stated: "I struggled with the Section 323 issue frankly, but I need to make a finding and I find that the facts in this case are insufficient to invoke the benefits of Section 323." The district court granted SGC's motion for summary judgment.

The Salls appealed from this decision, and a majority of the Court of Appeals affirmed in Sall v. T's, Inc., 34 Kan.App.2d 296, 117 P.3d 896. The majority determined: (1) lightning is not a foreseeable risk; (2) SGC did not breach any standard of care by failing to have a lightning detection system; (3) SGC had no duty to foresee lightning but, if it had a duty, there was no breach because SGC provided approximately 10 minutes' notice; Patrick and Chris saw the lightning themselves yet chose to remain on the golf course, and there was no evidence the air horn was not sounded early enough; and (4) because SGC was not negligent, Restatement (Second) of Torts § 323 is inapplicable. 34 Kan.App.2d at 300-08, 117 P.3d 896.

Judge Patrick D. McAnany dissented. In his opinion, SGC undertook the duty to sound a warning and there remained questions of fact whether SGC did so in a timely fashion or in an untimely, negligent fashion. 34 Kan.App.2d at 310-11, 117 P.3d 896 (McAnany, J., dissenting).

In their petition for review to this court, the Salls raised three issues: (1) The Court of Appeals erred in its conclusion that Restatement (Second) of Torts § 323 did not apply under the facts of this case; (2) the Court of Appeals erred in its conclusion that a lightning-related injury was not foreseeable as a matter of law and thus SGC owed no duty to Patrick Sall; and (3) the Court of Appeals erred in its conclusion that the evidence was insufficient, as a matter of law, to establish the existence of a local industry standard that required the use of lightning detection equipment.

The primary issue in this case is whether SGC has a duty to protect its patrons from the harm caused by lightning strikes on its premises. As set forth below, this question is one of law and our standard of review is de novo just as is our review of the summary judgment entered in this case. Without a duty there can be no negligence, which is the gist of Sall's cause of action. The issue of whether SGC exercised due care only arises if it is determined that SGC owed a duty to its patrons. Both the district court and the Court of Appeals determined that there was no duty as a matter of law. The Court of Appeals further concluded that if a duty existed, SGC did not breach its duty. Thus, we examine the question of whether a duty existed, and if it did exist, whether the facts in the case are disputed requiring that we reverse and remand to the district court.

Did SGC have a duty to protect its patrons (Patrick Sall) from the harm caused by lightning strikes on its premises?

Standard of Review

"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 par...