South ex rel. South v. McCarter

• Citation: 119 P.3d 1
• Decision Date: 09 September 2005
• Docket Number: No. 93,066.,93,066.
• Parties: Isaac John SOUTH, a minor, by and through his parents and next friends John SOUTH and Linda South, Appellants, v. James Johnson Aubrey McCARTER, a minor, and Mark McCarter and Jill McCarter, his natural guardians; Joshua Allen Mills, a minor, and Loretta Kay Tindell and Michael Allen Mills, his natural guardians; American Family Mutual Insurance Company; and S and J Investments of Topeka, Inc., Appellees.
• Court: United States State Supreme Court of Kansas

Page 1

119 P.3d 1

Isaac John SOUTH, a minor, by and through his parents and next friends John SOUTH and Linda South, Appellants, v. James Johnson Aubrey McCARTER, a minor, and Mark McCarter and Jill McCarter, his natural guardians; Joshua Allen Mills, a minor, and Loretta Kay Tindell and Michael Allen Mills, his natural guardians; American Family Mutual Insurance Company; and S and J Investments of Topeka, Inc., Appellees.

No. 93,066.

Supreme Court of Kansas.

September 9, 2005.

COPYRIGHT MATERIAL OMITTED

Frank D. Taff, of Topeka, argued the cause and was on the briefs for appellant.

Leonard R. Frischer, of Frischer & Associates, Chtd, of Overland Park, argued the cause, and Michael L. Hughes, of the same firm, was with him on the brief for appellees S and J Investments, Inc., of Topeka.

No appearance by appellees James Johnson Aubrey McCarter, Mark McCarter, and Jill McCarter.

DAVIS, J.:

Isaac John South, a minor, was injured during a physical altercation with defendants Joshua Mills and James McCarter in the mobile home park where both Isaac and Joshua lived with their parents. Isaac's parents brought suit on behalf of their son against Joshua and James, their parents, American Family Mutual Insurance Company, and the owner/manager of the mobile home park, defendant-appellee S and J Investments of Topeka, Inc., (S and J). Relevant to this appeal, the district court granted summary judgment in favor of S and J, finding it was not negligent as a matter of law and was not the legal cause of Isaac's injuries. The Court of Appeals granted the plaintiffs' application to take a civil interlocutory appeal, and the case was transferred to this court pursuant to K.S.A. 20-3017.

On September 3, 2001, plaintiffs Linda and John South entered into a "Rental Agreement for Manufactured Home Site" (rental agreement) with the owners of Green Acres Mobile Home Park (Green Acres), defendant S and J. Although the rental agreement was signed only by John and Linda, their minor son, Isaac South, was listed on the agreement as a resident of the home in Green Acres. In the agreement, Linda and John agreed to abide by all of the Green Acres Community Guidelines (community guidelines).

Section 5, Installation of New & Existing Mobile Homes, provides in relevant part: "The management reserves the right to (1) refuse admittance and accommodations to anyone without stating any cause or reason, (2) decline to allow any space to be occupied, or (3) refuse to accept further rent."

Section 8, "Liability of Management," provides in part:

"(a) It is understood and agreed by the residents that all common areas furnished by Green Acres Community such as automobile parking spaces, streets and recreational facilities shall be deemed gratuitously furnished and that if the Resident or any other person used the same, it shall be at the user's [sic] own risk. All persons using any facilities do [sic] so at their own risk."

Section 14, entitled "Noise," provides:

"(a) Avoid excessive noise. Play radios, televisions and stereos softly. Have respect for your neighbors. Residents must be responsible for the conduct of their guest. The property is privately owned and the right to evict any objectionable person or persons who may cause a disturbance or become a nuisance is reserved. The management shall be the sole judge of the existence or cause of such action."

On May 11, 2002, plaintiffs and defendants Joshua Mills and his parents Michael Mills and Loretta Tindell lived in the Green Acres Mobile Home Park owned by defendant S and J. That evening, Isaac drove past the Mills home on his way home from work. Joshua and James testified that Isaac was staring at them as he drove by. Joshua testified that he asked Isaac why he was staring at him, and they had a conversation where Isaac threatened them. Isaac testified that they starting cussing at him as he was driving by. Isaac drove home, changed his clothes, and walked back to the Mills' residence to see what their problem was.

Joshua and James were standing in the Mills' yard when Isaac arrived. The three minors offered conflicting accounts of what happened next. Isaac testified that Joshua was holding a BB gun and told him to leave. They exchanged words and Joshua took a swing at Isaac, James punched Isaac in the face, knocking out his tooth, and Isaac fell to the ground where James and Joshua kicked him. Isaac retreated to the road but returned near the Mills' vehicle to retrieve his hat. When he was leaning over to pick up his hat, James punched him in the mouth and broke his jaw.

Joshua and James characterized Isaac as the aggressor who swung at Joshua first. Joshua's father Michael Mills heard cussing and came outside and twice told Isaac to go home but he refused. Loretta Tindell also came outside. When Isaac came back into the yard to retrieve his hat, James saw a knife, so he punched Isaac in self-defense. Michael Mills also testified that he saw a knife in Isaac's hand and he found a knife in the yard the next morning. After James punched Isaac, Isaac walked home.

Isaac's father, John South, testified that when Isaac arrived home he looked as if he had been beaten because his jaw was hanging down and he was bleeding. Isaac said he had been "jumped," and his father took him to the emergency room. Isaac had emergency surgery to wire his jaw back together, and then he had subsequent surgeries that required two bone grafts from his bottom jaw. His medical expenses were approximately $30,000 at this point, and he will require further medical treatment.

Nearly 2 years before this incident occurred, Jack Benge, a shareholder of S and J, received a complaint from a Green Acres tenant's babysitter that two boys were cussing in the mobile home park and asked if something could be done. The tenant explained that she thought one of the boys lived up the street. Benge spoke with John Carey, an officer of S and J and owner and operator of Modern Mobile Home Sales, a neighboring mobile home park. Carey identified one of the boys as a resident of Modern Mobile Home Sales who was being evicted, and he identified the other possibly as James McCarter.

At Benge's direction, his attorney Jerold Berger sent James a letter dated July 18, 2000, which provided in relevant part:

"It has been brought to my attention that you have been coming on the property even though the owners and operators have requested that you stay off the property.

"Please consider this a formal request to stay off of the property known as Green Acres Mobile Home Community. Should you continue to violate this request you will be guilty of a criminal trespass. It is our intentions to fully follow through with prosecuting you if you continue to trespass on this property."

In his deposition, Benge denied knowing where the information for the substance of this letter was obtained, nor did he know of anyone who had spoken with James. James' father, Mark McCarter, signed a sworn declaration that he reviewed this letter after his son received it in the mail. Mark spoke with the park manager about the letter, and the park manager said the letter resulted from information she had that James might have been involved in a fight on the premises. Mark told the manager that James was not involved in a fight and that James had an aunt who lived on the premises. The manager agreed to allow James back on the premises because she did not have any evidence that James was involved in a fight and because his aunt lived on the premises.

Nancy Ketter, the operations manager at the time, denied having this conversation with Mark McCarter. Ketter had no knowledge of James being seen on the Green Acres property until the day of the subject fight, and she testified that no additional letters or further action had been taken against James. Ketter received no reports that James was on the property after the July 18, 2000, letter was sent, and she did not inform the other tenants that he had been advised to stay off of the premises.

The plaintiffs filed an action against James and his parents Mark and Jill McCarter, Joshua and his parents Michael Mills and Loretta Tindell, and American Family Mutual Insurance. The district court allowed the plaintiffs to amend the petition to add S and J as a defendant. Relevant to this appeal, the plaintiffs alleged in the amended petition:

"37. That notwithstanding the judgment of defendant S AND J INVESTMENTS INC. OF TOPEKA that defendant McCarter was an `objectionable person or persons who may cause a disturbance or become a nuisance,' the former [allowed] the latter to continue to come on the premises to associate with defendant Tindell and her son, the minor defendant Joshua Allen Mills.

"38. That neither at the time plaintiffs entered into the said landlord-tenant agreement, nor at anytime thereafter, were they aware of the aforesaid judgment having been made by defendant S and J Investments of Topeka, Inc., or that it was suffering the minor defendant McCarter to continue to come on the premises to associate with Loretta Kay Tindell and her son, the minor defendant Joshua Allen Mills, or that these residents constituted a danger to the safety and welfare of other tenants of the mobile home park.

"39. That defendant S AND J INVESTMENTS INC. OF TOPEKA knew or should have known that Loretta Kay Tindell and minor defendant Joshua Allen Mills were allowing the minor defendant James Aubrey McCarter to come onto the premises and that the two minor defendants presented a danger to the safety and welfare of the residents, including the plaintiffs.

"40. That by the common law of this state, the owner of a business has a duty to provide security for patrons or customers on the premises when circumstances exist from which the owner could reasonably foresee a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.

"41. That defendant S AND J INVESTMENTS INC. OF TOPEKA...