Opinion
No. 106,583.
2012-06-8
Noel A. CHILDS, Appellant, v. GOODLAND ECONOMY LODGING, INC., d/b/a Super 8 MOTEL, A South Dakota Corporation, et al., Appellees.
Appeal from Sherman District Court; Scott Show Alter, Judge. Dale E. Bennett and Rebecca P. Bennett, of Law Offices of Dale E. Bennett, of Westwood, for appellant. John D. Gatz, of Colby, for appellees.
Appeal from Sherman District Court; Scott Show Alter, Judge.
Dale E. Bennett and Rebecca P. Bennett, of Law Offices of Dale E. Bennett, of Westwood, for appellant. John D. Gatz, of Colby, for appellees.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
BRUNS, J.
In the early morning hours of December 30, 2006, Noel A. Childs was injured when he slipped and fell on the exterior stairs at the Super 8 motel (Super 8) in Goodland. Childs, who is a truck driver, was staying at the Super 8 because I–70 was closed due to a severe winter storm that dumped nearly 17 inches of snow on Goodland. Childs subsequently brought a negligence action against the owners of the Super 8. After prolonged litigation, the district court ultimately granted summary judgment in favor of the defendants. Because we find that a business proprietor does not have a duty to remove precipitation from exterior surfaces during a winter storm—and for a reasonable time thereafter—we affirm the district court's decision.
Facts
On December 29, 2006, Childs was driving a truck for Mail Contractors of America west on I–70. Around 10 a.m., Childs was forced to stop in Goodland because I–70 was closed due to a winter storm. Childs checked in to the Super 8 and was given a room on the second floor.
It was snowing when Childs arrived in Goodland, and snow continued to fall for the next 18 hours. By the time it stopped falling around 3 a.m. on December 30, 2006, nearly 17 inches of snow had accumulated. Moreover, even after the snow stopped, the strong winds continued to blow—with gusts as high as 39 miles per hour.
During the day on December 29, 2006, Childs spent his time contacting his employer, walking to a nearby truck stop where he had parked his truck, talking to other drivers, shopping at Wal–Mart, and eating at fast food restaurants. Childs also moved his truck on several occasions so it would not be stuck when the storm ended. According to Childs, the last time he checked on his truck that evening, it was dark outside and snow was still falling.
After checking on his truck, Childs returned to his room at the Super 8 and fell asleep. Around 4 a.m., he woke up and realized he had left his truck running. So Childs decided to leave his motel room to go to the truck stop and shut off the truck's engine.
Childs first attempted to use an interior staircase to go downstairs. But when he got to the bottom of the stairs, the door to the outside would not open because of a snow drift. Childs then went back up the stairs and attempted to go down the outside staircase. When he took a step, he fell and landed at the bottom of the stairs.
After he fell, Childs thought he had sprained his ankle. He briefly spoke to the woman on duty in the front office and returned to his room on the second floor. Childs was able to go back to sleep but woke up again around 7 a.m. When he awoke, Childs realized that his ankle was not just sprained because it was severely swollen. Childs called the front office for help, and an ambulance was called.
Because of the drifting snow, it was necessary for the ambulance to follow a snowplow that cleared a path from the hospital to the Super 8. In fact, Childs testified that he saw the snowplow clearing the way for the ambulance from his motel room. Although the trip from the hospital to the motel usually took 3 minutes, it took 12 minutes because the snow was so bad on the streets.
On December 29, 2008, Childs filed a petition for damages against the owners of the Super 8. Ultimately, on July 1, 2011, the district court granted the defendants' motion for summary judgment. Thereafter, Childs timely appealed.
Analysis
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. In making this determination, the district 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. An adverse party opposing a motion for summary judgment must come forward with evidence to establish a dispute as to a material fact, and the facts subject to the dispute must be material to the conclusive issues in the case. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Furthermore, summary judgment should be granted with caution in negligence cases. See Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). To prove a negligence claim, a plaintiff must establish the existence of a duty, a breach of that duty, an injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law, and whether the duty has been breached is a question of fact. Reynolds v. Kansas Dept. of Transportation, 273 Kan. 261, Syl. ¶ 1, 43 P.3d 799 (2002). Summary judgment is proper in a negligence action if the only questions presented are questions of law. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 39, 169 P.3d 1052 (2007).
The same rules apply on appeal of a district court's decision on a summary judgment motion. A summary judgment decision must be reversed if reasonable minds could differ as to the conclusions drawn from the evidence. See Osterhaus, 291 Kan. at 768. But if reasonable minds could not differ as to the conclusions drawn from the evidence, summary judgment was appropriate. See Bartal v. Brower, 268 Kan. 195, 203, 993 P.2d 629 (1999). Winter Storm Doctrine
In granting summary judgment to Super 8, the district court applied the law and rationale from this court's decision in Agnew v. Dillons, Inc., 16 Kan.App.2d 298, 822 P.2d 1049 (1991). Specifically, the district court found that the owners of the motel “could not be reasonably expected to keep an exterior staircase clear of ice and snow during or immediately following a severe blizzard.”
In Agnew, the plaintiff was exiting a Dillons grocery store when he slipped on a mat near the store's entrance. At the time the plaintiff had entered the store, an ice storm was in progress, and ice was accumulating in front of the store. The district court granted a directed verdict in favor of Dillons on the issue of liability. In affirming that part of the district court's decision, this court held:
“[A] business proprietor, absent unusual circumstances, does not breach the duty of ordinary care by not removing snow or ice from outdoor surfaces during a storm and a reasonable time thereafter.... A business would have to continuously devote time and effort to keep outdoor surfaces precipitation-free during a storm. We believe such an effort to be quixotic. Additionally, invitees using or traversing outdoor areas should be aware of the weather and its probable effect on those surfaces.... We are convinced a business proprietor does not breach the duty of ordinary care owed to invitees to keep premises in a reasonably safe condition by not removing accumulated precipitation from exterior surfaces during a winter storm and a reasonable time thereafter, absent unusual circumstances.” 16 Kan.App.2d at 304.
Furthermore, in Jones v. Hansen, 254 Kan. 499, Syl. ¶ 5, 867 P.2d 303 (1994), the Kansas Supreme Court found that the holding in Agnew is supported by sound public policy.
In the present case, Childs contends that summary judgment was not appropriate because there is a question of fact regarding whether the Super 8 breached its duty of ordinary care. But based on the Agnew decision—which the parties agree is applicable to this case—the Super 8 had no duty to remove the snow and ice from the stairs during the storm or for a reasonable time after the storm had ended.
Although it appears that a majority of the snow had fallen by 6 or 7 p.m. on December 29, 2006, weather records showed that snow was still falling until 3 a.m. on December 30, 2006. Moreover, by the time the snow ended, almost 17 inches had accumulated and strong winds—gusting over 30 miles per hour—continued to blow the snow that had already fallen. In fact, even 3 hours after Childs fell, the conditions continued to be so bad that a snowplow had to lead the ambulance from the hospital to the motel.
Based on the Agnew decision, we do not find that the Super 8 had a duty to clear the motel's outdoor surfaces of nearly 17 inches of blowing snow between 3 a.m. and 4 a.m. in the morning. Likewise, we do not find that the Super 8 had a duty to warn Childs that the exterior stairway would likely be slick. Certainly, “ ‘every pedestrian who ventures out at such time knows he [or she] is risking the chance of a fall and of a possible injury.’ “ Agnew, 16 Kan.App.2d at 304 (quoting Walker v. The Memorial Hospital, 187 Va. 5, 22, 45 S.E.2d 898 [1948] ).
Here, Childs knew that the winter storm had shut down I–70. Because he had gone outside several times during the time he was staying at the Super 8, Childs also knew that the snow was very deep and that the wind was blowing the snow into drifts. In addition, before attempting to use the exterior stairs in the early morning hours of December 30, 2006, Childs had attempted to use the interior stairs but found the door to the outside to be blocked by snow. Although there is conflicting evidence in the record regarding whether the Super 8 put up sawhorses to barricade the exterior stairway, we do not find that the motel had a duty to warn Childs of the severe conditions that he should have known he would be facing if he attempted to go down the exterior stairs at 4 a.m.
Childs also argues that he reasonably relied on the safety of the exterior stairs because the motel employees had attempted to clear the snow during the storm but abandoned their attempts before making the stairs safe. Although Circle Land & Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 488–90, 657 P.2d 532 (1983), adopted the Restatement (Second) of Torts § 323 (1965)—stating that a person who begins to render services to another is subject to liability to the other for physical harm that results from a failure to exercise reasonable care to perform this undertaking—the motel's duty is still one of ordinary care under the circumstances.
As such, we find that the Agnew rationale continues to be applicable under the circumstances presented in this case. As noted in the Walker case—which was relied upon by this court in Agnew—“changing conditions due to [a] pending storm render it inexpedient and impracticable to take earlier effective action, and ... ordinary care does not require it.” 45 S.E.2d at 902; see also Cash v. East Coast Property Management, Inc., No. 08C–08–213–MMJ, 2010 WL 2336867, at *3 (Del.Super.2010) (unpublished opinion) (“A volunteer policy to begin ice and snow removal during a storm does not give rise to liability.”).
Finally, Childs argues that the district court failed to resolve material questions of fact in his favor. In making this argument, Childs challenges the district court's finding that “[t]he testimony presented reflected that the blizzard conditions existed at the time of the fall and later into the morning. There was no credible testimony challenging this finding.” The district judge went on to explain: “The relevant weather records from [the National Oceanic and Atmospheric Administration] reflect that the blizzard conditions continued to exist well past the time of the fall. Moisture alone or wind alone does not make for blizzard conditions. However, once the moisture is in place—wind is the driving force behind blizzard conditions.”
Regardless of the scientific definition of a blizzard or blizzard conditions, it is uncontroverted that strong winds continued to blow well after the snow had stopped falling. In fact, these inclement weather conditions were still severe when the ambulance was called to the Super 8 several hours after the fall. When these conditions are viewed in light of the Agnew decision—which continues to serve as precedent—we conclude that the district court did not err in granting summary judgment in this case.
Affirmed.
* * *
MALONE, J., dissenting.
I respectfully dissent. Because of unusual circumstances presented in this case, I do not believe that Goodland Economy Lodging, Inc. d/b/a Super 8 Motel (Super 8) is entitled to summary judgment based on Agnew v. Dillons, Inc., 16 Kan.App.2d 298, 822 P.2d 1049 (1991).
In Agnew, the plaintiff stopped at a Dillons grocery store in Olathe around 7:45 a.m., and he spent approximately 15 minutes inside the store purchasing some items. An ice storm was in progress that morning. The entrance to Dillons contained a ramp, and on this particular morning, a red carpet mat was placed on the ramp. While leaving the store and walking down this ramp, the plaintiff slipped and fell, incurring several injuries. The plaintiff sued Dillons to recover for his injuries. Among other claims, the plaintiff alleged that Dillons was negligent in not removing snow and ice from the mat and entrance to the store. At trial, the evidence established that precipitation was falling that morning and freezing as it accumulated, although the plaintiff testified no precipitation was falling when he left the store. At the close of the plaintiff's evidence, the district court granted a directed verdict in favor of Dillons on the issue of liability. 16 Kan.App.2d at 299–300.
On appeal, this court enunciated what has become known as the winter storm doctrine and held that “a business proprietor does not breach the duty of ordinary care owed to invitees to keep premises in a reasonably safe condition by not removing accumulated precipitation from exterior surfaces during a winter storm and a reasonable time thereafter, absent unusual circumstances.” 16 Kan.App.2d at 304. The court reasoned that a requirement that a business proprietor continually expend effort during a winter storm to remove frozen precipitation from outdoor surfaces would essentially be a requirement to insure the safety of invitees and is a burden beyond that of ordinary care. 16 Kan.App.2d at 304. Interestingly, however, the Agnew court reversed the directed verdict in favor of Dillons, finding that the district court had erred by not permitting the plaintiff to introduce evidence that Dillons had failed to place a handrail at the entrance ramp where the plaintiff slipped and fell. 16 Kan.App.2d at 306.
The record herein reflects that Super 8 is a two-story motel with no elevator. When Noel A. Childs checked into the motel on December 29, 2006, he was assigned a room on the second floor. The motel has two sets of stairs that lead to the main level from the second-floor rooms—an interior, covered staircase and an outside, partially-covered staircase. In its summary judgment pleadings, Super 8 alleged that motel employees had placed sawhorses at the top and bottom of the outside staircase in order to barricade it and had warned guests about the dangers of using the outside stairs. But Childs disputed these alleged facts in his response to the summary judgment motion.
When Childs left his room at 4 a.m. on December 30, he first attempted to use the interior staircase to go downstairs. But when he got to the bottom of the stairs, the door to the outside would not open because of a snow drift. Childs then went back up the stairs and attempted to go down the outside staircase. When he took a step, he fell and landed at the bottom of the stairs. According to the National Oceanic and Atmospheric Administration's (NOAA) report from the National Weather Service, approximately 17 inches of snow fell in the Goodland, Kansas, area on December 29–30, 2006. However, the NOAA report also indicated that 96.3 percent of the snow had fallen by 7 p.m. on December 29, approximately 9 hours before Childs fell on the staircase.
Based on the record herein, I believe the district court erred by granting summary judgment in favor of Super 8 based on Agnew for three reasons. First, the winter storm doctrine adopted by this court in Agnew only applies “absent unusual circumstances.” Here, we have the unusual circumstances of a two-story motel with no elevator. Under these circumstances, it is reasonable to expect Super 8 to undertake special effort to assure that the stairs were clear of snow and ice so that the second-floor guests would have access to and from their rooms. And here, Childs was forced to use the outside staircase because the motel employees had not bothered to clear enough snow away from the door so that the safer interior staircase could be used to exit the motel.
Second, although it had only stopped snowing 1 hour before Childs fell at the motel (Childs fell at 4 a.m. and it had stopped snowing at 3 a.m.), the NOAA report indicated that 96.3 percent of the snow had fallen by 7 p.m. the evening before, approximately 9 hours before Childs fell. Granted, there were high winds blowing the snow and the roads near the motel were nearly impassible. But under these facts, reasonable minds could differ as to whether Super 8 had a reasonable time to clear the snow from the staircase before Childs' fall.
Third, there was a clear dispute of facts as to whether the motel employees had placed sawhorses at the top and bottom of the outside staircase and whether the employees had warned guests not to use the outside stairs. I disagree with the district court's finding that these disputed facts were not material to the issue of liability. If the motel employees placed sawhorses on the outside staircase and warned guests not to use the outside stairs as Super 8 alleged in its summary judgment motion, then it was all the more important for the motel employees to have cleared the doorway of snow so that the interior staircase could be used by guests. As it was, Childs was essentially trapped on the second floor of the motel because he had been warned not to use the outside staircase and the door at the bottom of the interior staircase was blocked with snow.
I acknowledge that Childs may have been comparatively negligent for not heeding the weather conditions that were observable to him. But under the comparative fault statute, the jury determines the percentage of fault, and this issue generally does not form a basis for granting summary judgment. See K.S.A.2011 Supp. 60–258a(b); Sall v. T's, Inc., 281 Kan. 1355, 1375, 136 P.3d 471 (2006). Super 8 is entitled to summary judgment only if the undisputed facts present a situation where the motel has no liability for Childs' injuries as a matter of law.
In ruling on a motion for summary judgment, the district 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. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). Summary judgment should be granted with caution in negligence cases. Edwards v. Anderson Engineering, Inc., 284 Kan. 892, 904, 166 P.3d 1047 (2007). Generally, whether a business proprietor exercises ordinary care to remove snow and ice for the safety of business invitees is a question of fact to be resolved by a jury. The winter storm doctrine adopted by this court in Agnew is a useful rule that courts may sometimes apply as a matter of law to determine the liability of a business proprietor to remove snow and ice during a winter storm. But courts should be cautious against rigidly applying this rule except in the most clear-cut situations. Otherwise, courts run the risk of usurping the role of the factfinder. The facts herein present a close case on the issue of liability, and, in my opinion, summary judgment should not be granted in close cases. Based on the record, I conclude the district court erred by granting summary judgment in favor of Super 8.