Storts v. Hardee's Food Systems, Inc.

• Decision Date: 11 March 1996
• Docket Number: Civ. A. No. 95-1036-MLB.
• Parties: Tammy STORTS, Plaintiff, v. HARDEE'S FOOD SYSTEMS, INC., Imasco Holdings, Inc., and Imasco, Ltd., Defendants.
• Court: U.S. District Court — District of Kansas

919 F. Supp. 1513

Tammy STORTS, Plaintiff, v. HARDEE'S FOOD SYSTEMS, INC., Imasco Holdings, Inc., and Imasco, Ltd., Defendants.

Civ. A. No. 95-1036-MLB.

United States District Court, D. Kansas.

March 11, 1996.

Donald A. McKinney, Wichita, KS, for plaintiff.

Paul P. Hasty, Jr., Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, for defendants.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter comes before the court for a de novo review of the United States Magistrate Judge's recommendation and report sustaining defendants Hardee's and Imasco Holdings' motion to dismiss plaintiff's amended complaint (Doc. 20).¹ The court has reviewed the file and the parties' memoranda (Docs. 22, 23, 24).

Procedural Facts

Plaintiff filed her complaint February 2, 1995. She alleged, in pertinent part, that on February 5, 1993 she was abducted from the parking lot of the Hardee's restaurant located on the Kansas Turnpike near Wellington, Kansas. She further alleged that the restaurant was negligently designed and operated "... in a manner which violated basic principles of consumer safety and crime prevention ..." and that Hardee's failed to provide proper security and other protections for her safety. Plaintiff contended that her abduction and resulting injuries and damages were the direct result of Hardee's negligence.

Plaintiff served process on Hardee's by serving C.T. Corporation Systems by certified mail postmarked May 18, 1995 and Imasco Holdings by certified mail received May 30, 1995 (Doc. 5, 6).² Plaintiff's reasons for waiting so long to serve defendants are not apparent. In any event, Hardee's filed a motion to dismiss on the ground that plaintiff's claim was barred by the statute of limitations (Docs. 2, 3).

Plaintiff's initial reaction to the motion was to file a first amended complaint (Doc. 4). Three days later, plaintiff filed her response to the motion to dismiss which stated, in substance, that she had abandoned the negligence claims of her original complaint and instead was pursuing a breach of contract claim which was not barred by the statute of limitations (Doc. 8). Hardee's and Imasco Holdings moved for dismissal of the first amended complaint on the ground that her claim still was barred by the statute of limitations (Docs. 9, 10). Plaintiff responded in a lengthy document which purported to discuss not only the contractual issues raised by Hardee's in its motion but also plaintiff's liability and damage theories including plaintiff's psychological condition (Doc. 11). After defendants filed their reply (Doc. 12), this court referred the motion to dismiss to United States Magistrate John Thomas Reid for a recommendation for disposition (Doc. 13). Magistrate Judge Reid's recommendation and report was filed on September 12, 1995 (Doc. 20). Plaintiff now seeks review of every aspect of Judge Reid's ruling.

Plaintiff's Contentions

The magistrate judge found that the gist of plaintiff's complaint was grounded in tort, not in contract, and was thus barred by Kansas' two-year statute of limitations, K.S.A. 60-513(a)(4). Plaintiff takes strong exception to this ruling. She argues that her claim is based upon certain specific provisions of the contract between Hardee's and the Turnpike Authority. The provisions upon which plaintiff relies are as follows:

The parties hereto shall bind themselves to the following conditions and covenants:

1. SERVICE: Operator agrees to operate the aforesaid restaurant facilities in an efficient and attractive manner and so to conduct its operations as to make its Kansas Turnpike restaurants models of proper management, both for service to the public and the winning of public esteem for Operator, its services and products, and for the Turnpike as a whole. Food and service shall be of a quality that will attract repeat business. Customers shall never be considered transients. All serving personnel shall be trained by Operator as necessary to obtain this quality of service, with emphasis given to courtesy, service to the patrons, and serving techniques.

* * * * * *

8. MAINTENANCE AND REPAIRS: For purposes of maintenance and repair, the leased premises and equipment shall be divided into three general categories: (a) buildings and related equipment, (b) restaurant equipment, and (c) leased premises.

* * * * * *

(c) Leased premises: Operator agrees to maintain the leased premises, including the area within the leased limits, in an attractive, clean, safe, and sanitary manner. Planting of shrubs, cutting of grass, and other landscaping shall be the responsibility of Authority. Authority shall also make, at its expense, all repairs to the parking areas, including resurfacing.

(d) General: Operator shall correct and remedy any and all unsatisfactory conditions inside or outside of the leased premises as they may relate to attractiveness, high quality of service, efficiency, cleanliness, safety, or sanitation, in a manner befitting the Turnpike and the facilities afforded. If Operator willfully neglects or refuses to correct or remedy such unsatisfactory conditions, which are herein defined as its responsibility, within twenty (20) days after receiving written notice from Authority to do so, then Authority shall have the right to take action to have the unsatisfactory conditions remedied and to submit a bill to Operator for the costs of the same. If such conditions persist, and after twenty (20) days have expired from the date of receipt of notice thereof by Operator, then Authority shall have the right to terminate this lease forthwith.

9. HOUSEKEEPING: Operator shall keep the buildings and leased premises in a neat and clean condition at all times.

* * * * * *

Operator shall police the areas outside the building, including entranceways, the patio area, and adjacent sidewalks, which are defined herein as sidewalks running parallel on both sides of the restaurant area, but not including the sidewalk running between the restaurant and the service station.

Authority shall keep the parking areas in a clean and sightly condition at all times, and shall make adequate arrangements for the collection of papers and trash, sweeping, hosing-down, and any other arrangements for general good housekeeping that may be necessary. Operator shall assist in keeping area free of litter to the best of its ability.

* * * * * *

25. TERMINATION:

* * * * * *

If, in the opinion of Authority,

* * * * * *

(d) if the operation of said restaurant becomes such that it is not to the best interest of the traveling public and that by reason thereof, the revenue from tolls accruing to the Authority is adversely affected, or

(e) the Operator does not maintain the properties and keep them in a clean and sightly condition and maintain the high standard of attractiveness, high quality of service, efficiency, cleanliness, safety and sanitation in a manner befitting the Turnpike and the facilities afforded as provided in Section 9 hereof; and if, in the opinion of Authority, such unsatisfactory conditions have not been completely remedied within twenty (20) days after notice has been received by Operator of such unsatisfactory conditions, then Authority shall have the right to terminate this lease forthwith on giving proper notice to Operator.

(provisions emphasized by plaintiff in bold. Doc. 22 at 4-5, 13).

Plaintiff argues that these contractual provisions impose upon defendants a higher duty than the negligence standard imposed by law, i.e., due care, and that they transcend the general rule that a business owner has no liability for injuries inflicted upon customers by the criminal acts of third parties which are committed in the business' parking lot unless "... 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." Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 548, 856 P.2d 1332 (1993).

Plaintiff concedes that she is not a party to the contract but nevertheless contends she is a third party beneficiary of the "higher duties" allegedly created by the contract.³ Apparently recognizing that the contract language does not specifically confer third party beneficiary status upon her, plaintiff asserts that the contract is ambiguous. Plaintiff contends that she should be able to offer evidence so that a jury can decide what is meant by certain terms of the contract and whether defendants owed her a duty (Doc. 24 at 9-14).

Standard of Review

The basis of defendants' motion to dismiss was that plaintiff's claim is barred by the statute of limitations. It was not predicated upon plaintiff's failure to state a claim as a third party beneficiary and the magistrate judge's decision was not based on that ground. However, because this matter is before the court de novo and because the parties have addressed the matter of plaintiff's third party beneficiary status in their memoranda, the court has elected to treat defendant's motion as one for failure to state a claim under Fed.R.Civ.P. 12(b)(6). Because both parties have cited to it, the court has considered one matter outside the pleadings: the contract. Technically, this requires conversion of the motion to one for summary judgment. Id.; Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). Conversion to summary judgment ordinarily requires the court to notify the parties and afford them an opportunity to present evidence. This procedure is not required, however, when the parties have had full opportunity to state their positions. In re: Harris Pine Mills, 44 F.3d 1431, 1439-40 (9th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2555, 132 L.Ed.2d 809 (1995). The court finds that further evidentiary presentation is not necessary since the court's decision is one of law based upon the written contract. The parties have briefed and rebriefed the contract and third party beneficiary issues and no...