Seibert v. Vic Regnier Builders, Inc.

• Decision Date: 30 July 1993
• Docket Number: No. 68595,68595
• Citation: 856 P.2d 1332,253 Kan. 540
• Parties: Betsy SEIBERT, Appellant, v. VIC REGNIER BUILDERS, INC., Appellee.
• Court: Kansas Supreme Court

Page 1332

856 P.2d 1332

253 Kan. 540

Betsy SEIBERT, Appellant, v. VIC REGNIER BUILDERS, INC., Appellee.

No. 68595.

Supreme Court of Kansas.

July 30, 1993.

Syllabus by the Court

1. The burden on the party seeking summary judgment is a strict one. 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. On appeal the appellate court applies the same rule, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.

2. Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence.

3. The owner of a business is not the insurer of the safety of its patrons or customers. The owner ordinarily has no liability for injuries inflicted upon patrons or customers by the criminal acts of third parties in the business' parking lot, as the owner has no duty to provide security. Such a duty may arise, however, where circumstances exist from which the owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.

4. The test for determining the foreseeability requirement for injuries to customers by the criminal acts of third parties occurring in a business' parking lot is determined to be the "totality of the circumstances" rule as opposed to the more restrictive "prior similar incidents" rule, all as is more fully discussed in this opinion.

Theodore C. Beckett III, of Beckett, Lolli, Bartunek & Beckett, Kansas City, MO, argued the cause, and Eric C. Sexton, of the same firm, was with him on the briefs for appellant.

David W. Hauber, of Boddington & Brown, Chtd., Kansas City, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

This is a premises liability action brought by a woman who was shot in the parking lot of a shopping center in an armed robbery by an unknown assailant. Liability is sought to be imposed upon the owner of the shopping center on the basis of negligence in not providing security for the area. The district court, utilizing the "prior similar incidents" rule of foreseeability, entered summary judgment in favor of the defendant. The plaintiff appeals therefrom.

Preliminarily, some rules relating to the granting of summary judgment in a negligence action need to be set forth. In Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 668, 792 P.2d 993 (1990), we stated:

" 'The burden on the party seeking summary judgment is a strict one. 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. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Lessley v. Hardage, 240 Kan. 72, 73-74, 727 P.2d 440 (1986).] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Willard v. City of Kansas City, 235 Kan. 655, Syl. p 2, 681 P.2d 1067 (1984); Mays v. Ciba-Geigy Corp., 233 Kan. 38, Syl. p 5, 661 P.2d 348 (1983).] If factual issues do exist, they must be material to the case to preclude summary judgment.' Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988)."

There are controverted facts relative to whether plaintiff Betsy Seibert had the legal status of a licensee or business invitee at the time she was injured. For purposes of ruling on the defendant's summary judgment motion, the district court, appropriately, held Ms. Seibert to be a business invitee. We shall do the same.

On April 2, 1989, Ms. Seibert was a passenger in an automobile owned and driven by her friend Michelle Brandes. At about 3:00 p.m., they drove to the Ranch Mart Shopping Center and parked in the subterranean parking garage. They got out of the automobile and reached into the back to retrieve their purses from the "cubby" area of the Corvette. Suddenly, each had an assailant. Where the two robbers had been prior to assaulting the women is unknown. Ms. Seibert had her handbag and a cola can in her hands. When confronted, Ms. Seibert screamed and either dropped or threw the can of cola at her assailant, who then shot her in the head. The robbers fled.

Ms. Seibert brought this action against Vic Regnier Builders, Inc., the owner of Ranch Mart, Inc., alleging it was negligent in not providing security for its patrons when the assault upon her was foreseeable. Specifically, she alleged that by virtue of past criminal activity in the shopping center's parking areas plus the nature of the underground parking area, including dim lighting by virtue of numerous burned-out fluorescent tubes, the defendant owed a duty to her as a business invitee to provide security. The shopping center had no security for its patrons--no warning signs, video surveillance, or security guards. The plaintiff offered expert testimony that the security, including the lighting, was inadequate and had appropriate security measures been in place, the attack upon her would probably not have occurred.

No evidence of prior crimes in the underground parking area was offered or suggested. There was sketchy evidence of crimes occurring in above-ground areas of the parking lot, as follows: (1) Prior to 1986, a car window was broken and personal property taken from the vehicle; (2) in 1986, an armed robbery occurred (details unknown); (3) in 1988, a strong-armed robbery attempt was interrupted when witnesses intervened, and a second armed robbery was thwarted when the victim resisted.

In granting summary judgment to the defendant premises owner, the district court stated:

"Maybe you can get the guys up in the appellate courts to tell me I'm wrong, but in this case, factually, there are a total of four crimes in the preceding two years upon which to base a conclusion that there would be a criminal act taking place in the future, and I think the rest of the facts are in a good posture for the appellate courts to deal with this case.

"This is an underground garage and, frankly, the plaintiff has facts which are as favorable as they could probably be in the absence of a lot of criminal activity. Like, I would assume, Indian Springs, for example, over in Wyandotte County would be one where there wouldn't be an issue as to the requirement to provide security. But you have a lot of other things going here, including the lighting issue, the underground garage which takes the public out of view of other members of the public; it's secluded. Those are facts that are, frankly, favorable to the plaintiff, but I just don't know where to draw the line here.

"So, I'm going to find in this case that the criminal act was not foreseeable.

"Let me go back and briefly make some other rulings in the case so that if it does go up, the appellate courts have the ability to rule on whatever issues they want to rule on.

"I'm going to find that there's a question of fact as to whether or not the plaintiff is a business visitor or a licensee, and that would be an issue which would ultimately be decided by a jury if the case is heard by a jury. So for purposes of deciding this motion, I'm making the assumption that the plaintiff is a business invitee. Under that situation, the defendant then is under a duty to maintain the premises in a reasonably safe condition.

"In this case there is no factual basis for either of the following: One, a requirement that the defendant provide security on the premises; or, two, there is no factual basis to find that the defendant would have reason to anticipate a criminal act would occur. In other words, the criminal act which resulted in plaintiff's injuries in this case was not foreseeable.

"I'll just simply adopt those portions of the facts which are really not controverted, and I think the only ones that are significant in this case are the ones that deal with lighting. There is a question of fact as to the condition of the lighting. For purposes of this motion, I'm assuming that there were lights that were not working in the garage. In other words--

"MR. HAUBER [defense counsel]: As opposed to the sidewalk or--

"THE COURT: In the area. The effect of my ruling is, basically, even if there was no lighting, the criminal act was still not foreseeable. So, see, the lighting, factually, doesn't become a factual issue in the case."

The plaintiff contends that under the "prior similar incidents" rule utilized by the district court, the court erred in holding that such prior incidents were insufficient to establish a duty owed. Alternatively, plaintiff contends the court erred in not applying the broader "totality of the circumstances" rule. The two rules are different methods for determining the foreseeability requirement of whether or not there is a duty owed by the premises owner to the customer injured by the criminal conduct of a third party.

In 62A Am.Jur.2d, Premises Liability § 513, p. 69, it is stated:

"In accordance with the general rule (subject to some major exceptions) that an owner of premises has no duty to protect another from criminal attack, a storekeeper or proprietor of other commercial premises will not generally be held responsible for the willful criminal act of a third person which could not be foreseen or anticipated."

The difference between the two methods of determining foreseeability is stated in 62A Am.Jur.2d, Premises Liability § 520, p. 77, as follows:

"Where the courts apply the 'prior similar incidents' test of foreseeability, the...